by MIKE BRESLIN
Metal theft is a serious problem and one of the fastest growing crimes in the country. Copper, aluminum, nickel, stainless steel and scrap iron have become an easy target for thieves looking to make a quick buck.
The only proven way to combat metal theft is to have metal recyclers work hand-in-hand with law enforcement to catch metal thieves. Most recyclers do follow their state’s laws, obtain complete identity information from sellers and report suspicious transactions.
But what happens when good faith efforts by recyclers aren’t enough? What happens when law enforcement officials don’t understand the laws they’re supposed to enforce? Oscar Rodriguez, owner of Atland Recycling, Inc. in Okeechobee, Florida, and his wife Liza, found out firsthand.
The Rodríguezes’ personal story is compelling. Both were refugees from Cuba who escaped from a dictatorial regime for freedom in the U.S. and a chance at the American Dream, where hard work pays off and fairness under the law is a cornerstone of liberty.
Both were born, raised and educated in Cuba. Liza was a chemical engineer and Oscar a mechanical engineer. In 1993, Oscar tried to escape to the U.S., was caught by Cuban officials, and spent a year in jail as a political prisoner.
In 1995, both applied for the U.S. green-card lottery which awards permanent-residence visas to a small fraction of the millions of applicants who apply each year. Luckily, Liza won a lottery visa. They were married in Cuba before immigrating to the U.S. in 1998.
Living in Miami, they immediately went to work. Liza attended night school and in three months earned her pharmacy certification. Oscar worked in the trucking industry and eventually became an owner-operator of a small fleet of trucks. While working, Liza continued her education at Barry University where she earned a bachelor’s degree in healthcare administration, and then went to Nova Southeastern University for a Master’s in business administration with a concentration in finance.
In 2006, after years of hard work and saving, they obtained a loan from the Small Business Administration and purchased Atland Recycling. The Rodríguezes built Atland into a highly successful business that today employs 15 people and is the leading metal recycler in their area. Oscar runs the business while Liza has been working on becoming certified as a financial advisor and auditor.
But on September 25, 2012, both Oscar and Liza were arrested by Detective Mark Shireman of the Okeechobee County Sheriff’s Office (OCSO) and charged with dealing in stolen property – a felony offense under Florida law.
Gary S. Betensky, who is board certified in business litigation by The Florida Bar and is a shareholder in the law firm of Richman Greer, P.A. in West Palm Beach, Florida has been corporate and litigation counsel to Atland for over 10 years. Betensky retained Kevin Gors, co-founder of Seal-Mar, a licensed security, investigation and training company operating in Florida and California, to investigate the events surrounding the criminal proceedings against Atland’s owners.
“I was called upon by the Rodríguezes’ corporate counsel to do an investigation. In my 37 years’ experience in law enforcement, I’ve never experienced something like this – a genuine legal nightmare,” said Gors.
Gors detailed the factual background of the case. The property at issue in the criminal case turned out to be a trailer and forklift that was sold to Atland as scrap for $700. Atland processed the transaction in accordance with Florida law. In fact, Atland went above and beyond what was required by law, and registered the transaction with LeadsOnline, the nation’s largest online investigation system used by law enforcement to recover stolen property, reduce metal theft and solve crimes.
Atland had a long-time client who saw the forklift and offered to buy it. Atland sold it for the same price they paid. The client worked on the forklift but could not get it running properly, so he sold it to a used equipment dealer located next to Atland for $1,000. The dealer’s intent was to invest $1,000 to $1,500 more and maybe sell it for $3,500 to $4,500.
Meanwhile, however, the forklift was reported as stolen in another jurisdiction. There, the investigating officer turned to LeadsOnline, where he was able to find the transaction involving the stolen forklift that had been voluntarily reported by Atland. The Detective and the original owner of the forklift were then able to track its whereabouts to the used equipment dealer – where they discovered that it had originally been sold to Atland.
At that point, Detective Shireman of the OCSO was called in to take over the investigation in Okeechobee. The forklift was voluntarily surrendered back to the original owner, and Shireman began his investigation.
Atland showed Shireman all the proper paperwork – photo, fingerprints, copy of driver’s license and signed affidavit for the transaction. Under Florida law, Atland was not required to report the forklift and trailer transaction through LeadsOnline. It was only due to Atland’s going the extra mile and listing all its transactions that law enforcement even learned where to look for the forklift and trailer – a perfect example of a scrap metal dealer cooperating with law enforcement.
The actual thief was identified – a person with a long criminal record. He turned out to be a property manager for an out-of-state equipment company who had been stealing from his employer and had pawned or scrapped stolen equipment several times over many months.
Catching the actual thief, however, wasn’t enough. Shireman wrote in his report that the trailer had been manufactured and the VIN number was missing, and therefore, Atland should have known the trailer was stolen. But according to Gors’ investigation, this was contrary to a report taken by police in the jurisdiction where the theft occurred, who reported that the owner had indicated that the trailer was homemade, and therefore had no VIN number to begin with.
But Shireman persisted, and proceeded under the theory that scrap dealers are only allowed to take in something that has nothing more than scrap value. In other words, if something has more potential value than the scrap value, then the recycler should know it was stolen and they should go to jail. He believed that no one would scrap a running forklift unless it was stolen.
But in many cases old forklifts are hard to find parts for, difficult to repair and are often written-off and scrapped. When Atland went back through their records history they were able to show Shireman numerous transactions for old forklifts they had purchased for scrap.
For all of Atland’s cooperation and the lack of evidence of any wrongdoing, Shireman chose to charge Oscar and Liza regardless. And despite the seemingly open and shut case, once the charges had been filed, the Rodríguezes were at the mercy of the local legal system.
According to Betensky, “The Rodriguezes and Atland followed the law to the tee, meaning they did all the proper paperwork, and then some. They attended all the appropriate seminars, including the seminar that preceded the most recent revision of the statute. They understand the statute and followed it better than anybody I know of and therefore were immune from any prosecution.
“This whole thing was trumped-up to begin with,” Betensky explained. “One element was that Detective Shireman just did not understand the law. When you combine Shireman’s lack of knowledge of the law, and the fact that his supervisors allowed him to pursue this, it led to a complete travesty of justice and an unwarranted and baseless prosecution.
“The assistant state attorney pushed this case for 11 months, up until he had to face the judge on a motion to dismiss which had been filed by the Rodriguezes’ defense counsel. On the day the motion was scheduled for hearing, the state attorney dropped the charges because he finally decided to do his own homework, rather than accept everything Shireman had been feeding him,” Betensky concluded.
“After working the case, we determined as long as Atland did the proper paperwork according to statutes, there’s nothing we can do,” said Assistant State Attorney Rob Moeller. “Though there was a presumption that it was stolen, and they should have known it was stolen, all of the paperwork was in order which protects them under the law.”
It took 11 months, but eventually, the charges against Oscar and Liza were dismissed. However, the damage to the Rodriguezes and their company is irreversible. The story of their arrest and imprisonment appeared in the general press, in trade journals and on the internet. The news affected their children, family, friends, community and local business associates. Even though the state eventually dropped the charges, that fact received little publicity.
“Nobody would like to do business with a person with an arrest record,” said Liza. “It’s really hard for us. What I learned since I left Cuba trying to be away from a dictator, was that here in the United States the only thing we have done is to work hard and these guys treated us like they were dictators.”
“It cost the Rodríguezes terribly, not only in legal defense and investigative costs, but their reputation in the business sense both domestically and with people they do business with overseas. Reputation is a very fragile thing. The fact they were arrested and jailed for a felony and faced imprisonment is pretty scary. You can’t put a price tag on that,” Gors commented.
Subsequently, Oscar and Liza Rodriguez filed a federal lawsuit against Detective Mark Shireman and two of his supervisors at the Okeechobee County Sheriff’s Office for violating their civil rights, wrongful arrest, false imprisonment and malicious prosecution. They hope to right this wrong and are seeking substantial money damages.
Atland’s experience was a tragedy and an anomaly, but should be a warning to scrap metal dealers to be extra vigilant and thoroughly understand, and follow metal theft laws in their jurisdictions.
Published in the March 2014 Edition of American Recycler News
