STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2300

)

EDWARD L. BONIFAY, III, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 3, 1984. The Division of Administrative Hearings received the transcript of proceedings on January 30, 1984. Nobody appeared on behalf of respondent. Petitioner was represented by counsel:

Dennis S. Valente, Esquire Post Office Box 1849 Tallahassee, Florida 32302

By administrative complaint dated June 16, 1983, petitioner alleged that respondent "on two occasions in September, 1982, entered the cell of a female inmate without being accompanied by a female officer against agency regulations" and that respondent "during these two incidents admits to gross immoral conduct while in the cell with the inmate." Citing Sections 943.13 and 943.145, Florida Statutes (1981), the administrative complaint alleges that respondent "is not qualified to hold a certificate as a correctional officer in the State of Florida since he has committed conduct unfit for an officer."

ISSUE

Whether petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?

FINDINGS OF FACT

1. Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick)

   
   

2. Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was

   told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing.

   
   

3. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch.

   
   

4. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones)

   
   

5. Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner is authorized to suspend or revoke correction officer certification upon proof of

   
   

   [t]he commission of conduct by the certificate holder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross mis- conduct which seriously reduces the certificate holder's effectiveness to function as a law enforcement officer or a correctional officer.

   
   

   Section 943.145(3), Florida Statutes (1981).

   
   

   In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplinary authority, if the allegations of misconduct are established at the

   hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

   
   

7. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts' alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

   
   

8. Petitioner met its burden in the present case by uncontroverted proof of misconduct in clear violation of written policies of the correctional facility where he was employed, which written policies are substantially the same as rules adopted by the Department of Corrections, Rules 33-8.05(2) and 33- 8.13, Florida Administrative Code; and by uncontroverted proof that this misconduct made it impossible for him to continue as an effective correctional officer. The evidence established "gross misconduct which seriously reduces [respondent's] effectiveness to function as a . . . correctional officer." Section 943.145(3), Florida Statutes (1981).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke respondent's certification as a correctional officer.

DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida.

ROBERT T. BENTON II

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 8th day of February, 1984.

COPIES FURNISHED:

Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302

Edward L. Bonifay, III

228 Cordoba Street

Gulf Breeze, Florida 32561

Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 83-002300

Orders for Case No: 83-002300