STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6409

)

AUBREY MINOR, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 23, 1990. The Division of Administrative Hearings received the transcript of proceedings on May 9, 1990. Petitioner's proposed findings of fact and conclusions of law were filed on May 18, 1990. The proposed findings of fact have been adopted, in substance.

Neither respondent nor anybody on his behalf entered an appearance.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated September 28, 1989, petitioner alleges that respondent "certified by the Criminal Justice Standards and Training Commission" and holder of both a law enforcement certificate and of a correctional officer certificate, "[o]n or about September 1, 1988, . . . did . unlawfully, while employed as a correctional officer with the Escambia County Department of Corrections, use excessive force to control an inmate . . . by striking the inmate in the face, although at the time the inmate was not offering any physical resistance"; and that these actions "did violate the provisions of Section 943.1395(5), (6), Florida Statutes and Rule 11B- 27.0011(4)(b), (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character."

After respondent requested a formal administrative hearing, the Criminal Justice Standards and Training Commission referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

At hearing, petitioner sought leave to file documentary evidence of respondent's certification as a late exhibit, and renewed this request in writing by motion for leave to file post hearing exhibit. The post hearing exhibit has been allowed.

FINDINGS OF FACT

1. Respondent Aubrey Minor was certified by the Criminal Justice Standards and Training Commission on April 24, 1986, the day the Commission issued respondent a certificate, No. 23-86-002-01.

   
   

2. In the late summer of 1988, Aubrey Minor worked as a correctional officer in the Escambia County Jail. On September 1, 1988, McArthur Young, an inmate, was so slow leaving the visiting area that respondent locked him in and left, in order to avoid further delaying escorting other inmates to their cells.

   
   

3. When he returned to retrieve the recalcitrant inmate, and while he was escorting him down the corridor that runs by the control room, he repeatedly asked him his name. Exasperated at the inmate's failure to tell him, respondent Minor grabbed McArthur Young's arm in order to read the name written on the wrist band he wore.

   
   

4. When Mr. Young pulled his arm away, Mr. Minor grew still angrier, and swung with full force, hitting McArthur Young in the jaw with the jail keys. Although only two six-inch brass keys were on the stainless steel ring when respondent hit the inmate, each weighed a pound, according to uncontroverted testimony.

   
   

5. Shouting by both men had attracted the attention of other Escambia County Jail personnel. Correctional officer Michael D. Miles saw respondent swing while the inmate's arms hung at his sides. Reacting threateningly to the blow, McArthur Young stepped toward respondent Minor. By this time, Corporal Frank Mayo, who had reached the spot where the men stood, stepped between them.

   
   

6. While another officer took respondent in hand, Corporal Mayo led the inmate to the infirmary, where the nurse gave him an ice pack. His jaw was red and slightly swollen but the tooth he claimed was loose did not seem loose to the nurse.

   
   

7. In the ensuing internal investigation, respondent lied to his superiors, although he conceded that "he got a little bit out of control." T.37. After the investigators concluded that his use of force had not been justified, Escambia County terminated respondent's employment. Jail policy forbids the use of force, even in response to a verbal threat.

   
   

   CONCLUSIONS OF LAW

   
   

8. Because the Criminal Justice Standards and Training Commission referred respondent's hearing request to the Division of Administrative Hearings, the "division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

9. License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487,

   491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs.

   Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear requirement, which the evidence shows has been breached.

   
   

10. Here petitioner is proceeding under statutory provisions that include section 943.1395(5), Florida Statutes (1989), which authorizes the:

    
    

    Commission . . . [to] revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10).

    
    

    Among the subsections referenced by Sectioft 943.1395(5), Florida Statutes (1989) is Section 943.13(4), Florida Statutes (1989), which requires that correctional: officers "[h]ave a good moral character as determined by a background investigation under procedures established by the Commission." In addition, Section 943.1395(6), Florida Statutes (1989) provides:

    
    

    Upon a finding by the Commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s.

    943.13(7), the Commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

    1. Suspension of certification for a period not to exceed two years.

    2. Placement on a probationary status for a period not to exceed two years, subject to terms and conditions imposed by the Commission. Upon the violation of such terms and conditions, the Commission may revoke certification of proposed additional penalties as enumerated in this subsection.

    3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the Commission.

    4. Issuance of a reprimand.

       The Department has adopted Rule 11B-27.0011(4), Florida Administrative Code, which provides, in pertinent part:

       
       

       For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain good moral character, as required by Subsection 943.13(7), is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

          Sections . . . 784.03, . . . or

       3. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty,

       fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime.

       
       

       The evidence showed that respondent committed simple battery, proscribed by Section 784.03, Florida Statutes (1989), although he was not prosecuted criminally. Section 951.07, Florida Statutes (1989) forbids and Section 951.17, Florida Statutes (1989) directs the Florida Department of Corrections to Prohibit corporal Punishment of county Prisoners.

       
       

11. While Section 943.1395(5) and (6), Florida Statutes (1989) antedate the contretemps at the Escambia County Jail, Rule 11B-27.0011(4), Florida Administrative Code, only took effect afterwards. Statutes stating new grounds for revocation should not be given retroactive effect, Hector v. DPR, FREC, 504 So. 2d 469 (Fla. 1st DCA 1987), Norman Curtis Lewis v. Criminal Justice Standards Commission, 462 So. 2d 528 (Fla. 1st DCA 1985); Nechtman v. Saker,

    271 So. 2d 26 (Fla. 3rd DCA 1972), but the Substantial restatement of an old ground in a new statute authorizes disciplinary action on the Preexisting ground under the new statute. Drury v. Harding, 461 So. 2d 104, 108 (Fla. 1984); Solloway. Department of Professional Regulation, 421 So. 2d 573 (3rd DCA 1982) rev. den. 430 So. 2d 452 (Fla. 1983). Although both statutory Provisions at issue here were in force before respondent struck the inmate, the efficacy of Section 943.1395(6), Florida Statutes (1989) arguably awaited adoption of Rule 11B-27.0011(4), Florida Administrative Code. Since the rule merely restates preexisting grounds set out in the statute and since, in any event, Section 943.1395(5), Florida Statutes (1989) was fully effective at all pertinent times, subsequent adoption of the rule does not Preclude disciplinary action.

    
    

12. Section 943.1395(6), Florida Statutes (1989) authorizes penalties short of revocation for misconduct evincing bad moral character. Earlier enacted, subsection five only contemplated revocation. But nobody contends that the lesser Penalties (1989) directs the Florida Department of Corrections to prohibit corporal punishment of county prisoners.

13. While Section 943.1395(5) and (6), Florida Statutes (1989) antedate the contretemps at the Escambia County Jail, Rule 11B-27.0011(4), Florida Administrative Code, only took effect afterwards. Statutes stating new grounds for revocation should not be given retroactive effect, Hector v. DPR, FREC, 504 So. 2d 469 (Fla. 1st DCA 1987), Norman Curtis Lewis v. Criminal Justice Standards Commission, 462 So. 2d 528 (Fla. 1st DCA 1985); Nechtman v. Saker,

    271 So. 2d 26 (Fla. 3rd DCA 1972), but the substantial restatement of an old ground in a new statute authorizes disciplinary action on the preexisting ground under the new statute. Drury v. Harding, 461 So. 2d 104, 108 (Fla. 1984); Solloway v. Department of Professional Regulation, 421 So. 2d 573 (3rd DCA 1982) rev. den. 430 So. 2d 452 (Fla. 1983). Although both statutory provisions at issue here were in force before respondent struck the inmate, the efficacy of Section 943.1395(6), Florida Statutes (1989) arguably awaited adoption of Rule 11B-27.0011(4), Florida Administrative Code. Since the rule merely estates preexisting grounds set out in the statute and since, in any event, Section 943.1395(5), Florida Statutes (1989) was fully effective at all pertinent times, subsequent adoption of the rule does not preclude disciplinary action.

    
    

14. Section 943.1395(6), Florida Statutes (1989) authorizes penalties short of revocation for misconduct evincing bad moral character. Earlier enacted, subsection five only contemplated revocation. But nobody contends that the lesser penalties authorized by Section 943.1395(6), Florida Statutes (1989) are unavailable in the present case. With respect to statutory changes authorizing more severe penalties, see Department of Transportation v. James,

    403 So. 2d 1066 (Fla. 4th DCA 1981) (statute enacted subsequent to conduct for which a career service employee was disciplined held unavailable to authorize consequences graver than those contemplated by the statute in effect at the time of the dereliction). In AAA Guaranteed Mortgage, Inc. v. State Department of Banking and Finance, Division of Finance, 517 So. 2d 761 (Fla. 2nd DCA 1987), the appeals court reversed imposition of costs in a revocation proceeding on grounds the misconduct which resulted in revocation antedated the statute authorizing imposition of costs.

    
    

15. Petitioner's counsel argues eloquently, however, that revocation is the appropriate penalty in cases of this kind. Petitioner's proposed recommended order contends, at pages 6 and 7:

The Respondent's improper use of force was compounded by his use of a heavy set of keys to strike the inmate's face. The Respondent could have easily avoided using any such force by merely summoning help from several correctional officers who were nearby.

Clear and convincing evidence .

established his lack of good moral character. The Respondent committed a battery on another person and in doing so also used excessive force on an inmate. The position of correctional officer is one of great public trust. There can be no more basic public expectation than that correctional officers will observe law abiding conduct and treat jail inmates in a humane manner.

Resort to brute force with so little provocation, its unjustified use against a person for whose welfare respondent was responsible, and untruthfulness about these important matters indicate the type of bad moral character that should

disqualify would-be correctional officers. Nothing in the evidence suggested that unusual circumstances at the jail or in respondent's private life mitigate his culpability.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner revoke respondent's certificate.

DONE and ENTERED this 1st day of June, 1990, in Tallahassee, Florida.

COPIES FURNISHED:

Abrey Minor

901 West Massachussetts

Lot #17

Pensacola, FL 32505

Joseph S. White, Esquire Department of Law Enforcement Tallahassee, FL 32302

Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

ROBERT T. BENTON, II

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 1st day of June, 1990.

Docket for Case No: 89-006409

Orders for Case No: 89-006409