STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6413

)

PAMELA D. McCORMICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 16, 1990, at Miami, Florida, before Michael M. Parrish, a Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Elsa Lopez Whitehurst, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: W. Sam Holland) Esquire

Kimbrell & Hamann, P.A. Suite 900, Brickell Centre 799 Brickell Plaza

Miami, Florida 33131-2805 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that Respondent has failed to maintain good moral character as required by Section 943.13(7), Florida Statutes. The main factual issue in this case concerns whether the Respondent committed a battery on a law enforcement officer.

PRELIMINARY STATEMENT

Four witnesses testified at the final hearing in this case; two law enforcement officers, the Respondent, and a bystander who was present at the time of the incident that forms the central issue in this case. subsequent to the hearing a transcript of the proceedings was filed with the Hearing Officer on March 5, 1990. The parties were allowed until March 26, 1990, within which to file their proposed recommended orders. Both parties filed proposed recommended orders. Findings of fact proposed by the parties are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified as a correctional officer by the Criminal Justice standards and Training Commission on February 17, 1988, and was issued certificate No. 03-87-502-08.

   
   

2. On October 3, 1988, Metro-Dade Police Officer Jay Rogers was on duty and was dispatched to the Kendall Town and Country Mall to assist the Mall's security officers in clearing the parking lot after a night club closed. Officer Rogers walked up to a group of people, including the Respondent and asked them to finish saying good-bye and leave the parking lot. Officer Rogers then backed off and gave the remaining people in the lot about ten to fifteen minutes to finish saying good-bye. Officer Rogers again approached the group which included the Respondent, and asked that they leave.

   
   

3. At that point, the Respondent replied to the officer's request with words to the effect of, "You wait, you can't make us leave, I'm looking for my keys." Officer Rogers asked the Respondent to find her keys, do whatever she needed to do, finish saying good-bye, and to please leave. The Respondent replied with words to the effect of, "I'll leave when I'm ready," and, "You're not telling me what to do." At about this point in the communication between Officer Rogers and the Respondent, an unidentified male approached the Respondent and said words to the effect of, "Come on, let's leave, the officer told us to leave, let's get out of here." The Respondent pushed the unidentified male away, and he got into a vehicle and left. Officer Rogers again asked the Respondent to leave. At some point in the interchange the Respondent replied, "What are you going to do, arrest me?"

   
   

4. Eventually, Officer Rogers told the Respondent to leave or she would be arrested for trespassing after warning. The Respondent continued to say that she was not leaving. Officer Rogers thereupon advised the Respondent that she was under arrest for trespassing after warning and removed his handcuffs from his belt. At this point the Respondent became belligerent and hostile and told Officer Rogers, "You're not arresting me," and, "You'd better call for a lot of police, I'm not leaving." Officer Rogers requested backup units at this time.

   
   

5. At about the same time, a man named Randall Rymes attempted to intervene between Officer Rogers and the Respondent. Officer Rogers told Mr. Rymes to leave and not interfere with the arrest. Mr. Rymes moved away and got into a two-door, black Isuzu automobile.

   
   

6. As Officer Rogers attempted to place the handcuffs on the Respondent, she pulled her arm away and twisted her body. Officer Rogers continued with his efforts to arrest the Respondent and grabbed her left arm while asking her not to resist or struggle. The Respondent again pulled her left arm away and then struck Officer Rogers in the neck with her right fist. With Officer Rogers holding onto her arm, the Respondent pulled the officer towards the black Isuzu occupied by Mr. Rymes. Mr. Rymes drove the car beside the Respondent, opened the passenger door, and yelled to Respondent to get into the car. Mr. Rymes also grabbed the Respondent and attempted to help pull her into the car. At that point the Respondent kicked Officer Rogers in the left knee and as Officer Rogers continued to try to put the handcuffs on, the Respondent got partially into the car. Thereupon, Mr. Rymes started driving away with Officer Rogers running beside the automobile still holding onto the Respondent. Officer Rogers finally had to let go to avoid the risk of further injury.

7. The vehicle driven by Mr. Rymes continued for several hundred feet until it was blocked by a vehicle driven by another law enforcement officer. Officer Rogers ran to the automobile driven by Mr. Rymes, removed the Respondent from the car, handcuffed her, and placed her in a police vehicle.

   
   

8. Although Respondent had been drinking alcoholic beverages, she was not intoxicated at the time of the events described above. The Respondent has never been arrested or charged with a crime other than in the incident described above. /1

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. Section 120.57(1), Florida Statutes.

   
   

10. Section 943.13(7), Florida Statutes, provides that any person employed or appointed as a correctional officer shall, among other things, "Have a good moral character as determined by a background investigation under procedures established by the commission."

    
    

11. Section 943.1395(5) and (6), Florida Statutes, contains the following relevant language:

    
    

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s.943.13(1)-(10) or who intentionally executes a false affidavit established in s.943.13(8), s.943.133(2), or s.943.139(2).

    2. 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 2 years.

       2. Placement on a probationary status

          for a period not to exceed 2 years, subject to terms and conditions - imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose 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

12. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The rule states in relevant portion:

    
    

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

    1. The perpetration 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 . . . F.S., 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 or whether such act or conduct constitutes a crime. . . .

    
    

13. Section 784.03, Florida Statutes, provides:

    
    

    1. A person commits battery if he:

       1. Actually and intentionally touches or strikes another person against the will of the other; or

       2. Intentionally causes bodily harm to an individual.

    2. Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s.775.082, s775.083, or s.775.084.

    
    

14. Under Section 784.07(2), battery comes a felony offense where the victim is a law enforcement officer:

    
    

    (2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer while

    the officer . . . is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:

    (a) . . .

    (b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

15. In the instant case, the Respondent committed a battery upon Officer Rogers by striking and kicking him on October 3, 1988. Because Officer Rogers was a law enforcement officer engaged in the performance of his duties at the time of the battery, the Respondent's act constituted a felony. The perpetration of this specific battery comes within the definition of "failure to maintain good moral character" as defined in subparagraphs (a), (b), and (c) of Rule 11B-27.0011(4), Florida Administrative Code. Accordingly, one of the penalties authorized by Section 943.1395(5) and (6), Florida Statutes, should be imposed. In determining which of the penalties should be imposed, consideration should be given to the fact that the event giving rise to this case appears to be an isolated incident in the Respondent's life, and there is no reason to believe that the Respondent is likely to engage in similar conduct in the future. Accordingly, one of the less severe penalties appears to be in order.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4), Florida Administrative Code, and imposing a penalty of probationary status for one year conditioned on the Respondent not engaging in any conduct during the probationary period which constitutes failure to maintain good moral character within the meaning of Rule 11B-27.0011(4), Florida Administrative Code.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of May 1990.

MICHAEL M. 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 1st of day of May 1990.

ENDNOTE

1/ In making these findings of fact I have had to resolve many conflicts between the testimony of Respondent and the testimony of the witnesses called against her. The testimony of Officers Rogers and Garcia and of the bystander, Mr. Ed Nardone, has been found to be more credible and worthy of belief than the Respondent's testimony about the events in the parking lot. Accordingly, conflicts in the testimony have generally been resolved in favor of the version put forth by the officers and Mr. Nardone. It also appears to the Hearing Officer that the major differences between the testimony of the Respondent and that of the other witnesses are attributable to honest differences in recollection and point of view, rather than to any deliberate attempt to misstate the facts.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6413

The following are my specific rulings on the proposed findings of fact submitted by the parties.

Findings proposed by the Petitioner:

I have accepted the substance of all proposed findings of fact submitted by the Petitioner, except as specifically set forth below.

The following paragraphs are rejected as constituting subordinate and unnecessary details: 29, 30, 33, and 34.

The following paragraphs are rejected as cumulative and repetitious: 31 and 32. The following paragraphs are rejected as irrelevant: 27 and 28.

Findings proposed by the Respondent:

The proposed recommended order submitted by the Respondent does not contain any proposed findings of act.

Instead, it contains a nine-page summary of all of the testimony. A summary of all the testimony, including the testimony that conflicts with the Respondent's testimony, does not constitute proposed findings of fact.

COPIES FURNISHED:

Elsa Lopez Whitehurst, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

W. Sam Holland, Esquire Kimbrell & Hamann, P.A. Suite 900, Brickell Centre 799 Brickell Plaza

Miami, Florida 33131-2805

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy General Counsel

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 89-006413

Orders for Case No: 89-006413