STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 92-7256
)
JAMES L. HOBSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on June 8 and 9, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Susan L. Somers, Esquire
Regional Legal Advisor
Florida Department of Law Enforcement 7265 Northwest 25th Street
Miami, Florida 33122
For Respondent: James C. Casey, Esquire
10680 Northwest 25th Street, Suite 202
Miami, Florida 33172-2108 STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On March 10, 1992, the Criminal Justice Standards and Training Commission (hereinafter referred to as either the "Commission" or "Petitioner") issued an Administrative Complaint alleging that Respondent had engaged in the following conduct:
On or about June 26, 1989, Respondent, James
L. Hobson, did then unlawfully while emp- loyed as [a] Correctional Officer with the Metro-Dade Corrections and Rehabilitation Department use excessive and/or unnecessary force against inmate John Breedlove.
According to the Administrative Complaint, such conduct "violate[d] the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B- 27.0011(4)(b), 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."
Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On December 7, 1992, the Commission referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.
The hearing was originally scheduled to commence on April 1, 1993, but at the request of Respondent and without opposition by Petitioner was continued and rescheduled for June 8 and 9, 1993. The hearing was held on June 8 and 9, 1993, as scheduled.
At hearing, Petitioner presented the testimony of the following 15 witnesses: Darlene Beasley; Harold McCartney; John Mestrinelli; Ricardo Gibson; Gloria Porter; Arthur Brown; Edith Owens; Gregory McKenzie; John Breedlove; Eduardo Astigarraga; Mary Ann Blake; Larry Jinright; Francie D'Erminio; Dennis Bedard; and Richard Wright. Respondent testified on his own behalf and presented the testimony of the following 16 additional witnesses: Lois Spears; Lonnie Nason; Gary Gourdet; Larry Jinright; Paul Tyre; William Page; Mike Pieper; James Wood; Francie D'Erminio; Carl Nowell; Manny Fernandez; Mike Leonard; Respondent's father, James Hobson; Henry Dykes; Curtis Davis; and Robert Jordan. In addition to the testimony of these witnesses, a total of 30 exhibits (Petitioner's Exhibits 13 through 29 and Respondent's Exhibits 2 through 14) were offered and received into evidence.
At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. On July 30, 1993 and August 2, 1993, respectively, Respondent and Petitioner timely filed proposed recommended orders.
The parties' proposed recommended orders contain what are labelled as proposed "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
Respondent is now, and has been since August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07.
Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro").
He currently holds the rank of corporal.
On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day.
During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift.
June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day.
On June 26, 1989, the third floor of the Main Jail housed approximately
220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing.
John Breedlove was one of these inmates.
Breedlove was 19 years old.
His height was approximately five feet, eight inches.
His weight was approximately 210 pounds.
Breedlove had the privilege of being a trustee.
Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor.
Trustees are inmates who are given various tasks to perform in and around the Main Jail.
They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services.
As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor.
Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments.
Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility.
On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility.
The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson.
Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor.
Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment.
Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor.
Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor.
Beasley complied with Breedlove's request.
Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor.
Respondent asked Breedlove what he was doing there.
Breedlove responded that he had returned to the floor to get a haircut and to do his laundry.
Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment.
Respondent thereupon continued his feeding of the inmates on the floor.
After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms.
Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment.
Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment.
After Gibson arrived, Respondent continued his feeding of the inmates on the floor.
After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor.
Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment.
Breedlove's response was that Beasley had brought him back to the floor.
Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor.
The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located.
It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh.
Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor.
Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989.
Beasley was seated at a desk behind McCartney.
Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor.
Beasley indicated that she had.
Respondent and Beasley then discussed the matter further.
The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment.
She thereupon retrieved Breedlove.
She then walked to the elevators on the floor.
Breedlove followed behind her.
Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs.
The elevator stopped and McKenzie and Beasley walked on.
Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity.
Respondent heard Breedlove.
This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee.
Respondent therefore told Breedlove that he was "busted."
In jail parlance, "busted" means removed from trustee status.
Any correctional officer in the Main Jail has the authority to "bust" a trustee.
Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings.
Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent.
Respondent reacted by repeating his order that Breedlove go to his cell.
Breedlove, however, did not move.
Respondent then started walking towards Breedlove.
Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent.
Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell.
He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell.
As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away.
Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder.
The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor.
Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass.
Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass.
The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell.
Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt.
Respondent was more fortunate than Breedlove.
He did not come in contact with any glass.
He was startled by the breaking of the glass, but uninjured.
After falling to the ground, he got off of Breedlove and backed away to regain his composure.
He stood by as Beasley rushed to Breedlove's aid.
Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance.
Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control.
Breedlove suffered multiple lacerations on his right cheek as a result of the incident.
At the jail clinic, bandages were wrapped around his face to control the bleeding.
Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment.
At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches.
After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove.
A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident.
D'Erminio ordered that the matter be investigated.
An internal investigation of the incident was conducted.
Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro.
Respondent successfully appealed his suspension.
He subsequently was promoted to corporal.
CONCLUSIONS OF LAW
The instant Administrative Complaint alleges that "[o]n or about June 26, 1989, Respondent, James L. Hobson, did then unlawfully while employed as [a] Correctional Officer with the Metro-Dade Corrections and Rehabilitation Department use excessive and/or unnecessary force against inmate John Breedlove." The Administrative Complaint further charges that, in engaging in such conduct, Respondent violated "the provisions of Section 943.1395(5),(6), Florida Statutes [subsequently renumbered Section 943.1395(6),(7), Florida Statutes, and amended by Chapter 92-131, Laws of Florida] and Rule 11B- 27.0011(4)(b), 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."
At the time of the filing of the Administrative Complaint and at all material times prior thereto, Section 943.1395(5), Florida Statutes, provided that the Commission "shall revoke the certification of any [correctional] officer who is not in compliance with the provisions of s. 943.13(1)-(10)." Subsection (6) of Section 943.1395, Florida Statutes, authorized the imposition of certain lesser penalties in appropriate cases.
Section 943.13(7), Florida Statutes, provided, as it still does, that any person employed or appointed as a correctional officer shall "[h]ave a good moral character as determined by a background investigation under procedures established by the commission."
"Moral character" is
not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indi- cates and establishes the qualities gener- ally acceptable to the populace for positions of trust and confidence.
Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A correctional officer demonstrates a lack of "good moral character" when he engages in "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).
The Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395, Florida Statutes, has codified in Rule 11B-27.0011(4), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." The rule provides in pertinent part as follows:
(4) For purposes of the Commission's imple- mentation of any of the penalties enumerated in Subsection 943.1395(6) or (7), a cert- ified officer's failure to maintain good moral character, as required by Subsection 943.13(7), is defined as: . . .
(b) The perpetration by the officer of an act which would constitute any of the follow- ing misdemeanor or criminal offenses, whether criminally prosecuted or not: sections . . . 784.03, . . . F.S.;
At all times material to the instant case, Section 784.03, Florida Statutes, has provided in pertinent part as follows:
A person commits battery if he:
Actually and intentionally touches or strikes another person against the will of the other; or
Intentionally causes bodily harm to an individual.
A correctional officer who intentionally uses physical force against an inmate under his supervision is guilty of committing a battery in violation of Section 784.03, Florida Statutes, and, resultingly, of failing to maintain "good moral character" if the force used is excessive.
Physical force used by a correctional officer is not excessive if it is reasonably necessary to overcome an inmate's physical resistance to a lawful command.
To determine whether the force used was reasonably necessary to overcome such resistance all of the circumstances surrounding the incident must be examined. Cf. B.R. v. Department of Health and Rehabilitative Services, 558 So.2d 1027, 1029 (Fla. 2d DCA 1989)("Whether corporal punishment [of a child] is excessive must be proved in each case by competent, substantial evidence, and all relevant issues presented must be considered without resort to arbitrary presumptions").
In those cases where revocation or suspension of a correctional officer's certification is sought based on his alleged failure to maintain "good moral character," the certificate holder's lack of "good moral character" must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation,
592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Furthermore, the disciplinary action taken can be based only upon the facts specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
To the extent that Section 943.1395, Florida Statutes, authorizes the Commission to take disciplinary action against a certified correctional officer "it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
An examination of the record in the instant case reveals that the allegations of excessive force made against Respondent in the instant Administrative Complaint are not supported by even a preponderance of the evidence.
While the evidence clearly and convincingly establishes that Respondent was involved in an altercation with an inmate, John Breedlove, at the Main Jail on June 26, 1989, that resulted in Breedlove crashing into the third floor control booth and sustaining facial injuries, the greater weight of the evidence establishes that Respondent did not intentionally push or shove Breedlove into the control booth and that, in attempting to gain physical control over Breedlove and overcome Breedlove's resistance to the order given by Respondent that Breedlove proceed to his cell, Respondent did not purposefully use any more force than was reasonably necessary to accomplish these lawful objectives. Breedlove's injuries, it appears, were not the result of the intentional use of any excessive force on Respondent's part, but rather were simply the product of an accident that occurred during Breedlove's struggle to free himself from the physical control that Respondent was lawfully attempting to exercise over him.
Accordingly, the evidence is insufficient to establish that, at any time during his altercation with Breedlove, Respondent violated Section 784.03, Florida Statutes, or otherwise engaged in conduct which would cause one to have substantial doubts concerning his honesty, fairness or respect for the rights of others or for the laws of the state and nation.
The Commission therefore has not meet its burden of proving that Respondent has failed to maintain "good moral character," within the meaning of Section 943.13(7), Florida Statutes, as alleged in the Administrative Complaint.
The Administrative Complaint thus should be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1993.
ENDNOTES
1/ It is not unusual to hear profanity in the jail.
2/ The 1992 amendment to Section 943.1395, Florida Statutes, did not eliminate the Commission's authority to discipline certified correctional officers who fail to maintain "good moral character."
3/ In making this determination, the Hearing Officer has relied upon Respondent's version of the incident rather than the contrary accounts given by the Commission's witnesses. Respondent was in a far better position than any of his coworkers who testified against him to know what actually happened during his encounter with Breedlove and he testified about the matter with apparent sincerity and candor and in a manner that suggested he had a clearer recollection of the pertinent events of June 26, 1989, than did any of the Commission's witnesses who contradicted his testimony. Moreover, Respondent's
testimony is internally consistent in all material respects and, in addition, is plausible, even when considered in light of the testimony given by the glass expert who testified for the Commission.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7256
The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' proposed recommended orders:
The Commission's Proposed Findings of Fact
1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
First, second, fifth, sixth, eighth and ninth sentences: Accepted and incorporated in substance; Third, fourth and tenth sentences: Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Seventh sentence: Rejected because it is contrary to the greater weight of the evidence.
First sentence: To the extent that it states that Respondent "was a Correctional Officer I," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.
Second sentence: Rejected as a finding of fact because it is more in the nature of a statement of what occurred at hearing; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Rejected because it is contrary to the greater weight of the evidence.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected because it is contrary to the greater weight of the evidence.
First and second sentences: To the extent that they state that McCartney, from his vantage point in the control booth, was in a position to observe the altercation between Respondent and Breedlove on June 26, 1989, and that he thought he "saw the Respondent smash the inmates's head through the booth," it has been accepted and incorporated in substance. To the extent that it states that Respondent actually and intentionally "smash[ed] the inmate's head through the booth," it has been rejected because it is contrary to the greater weight of the evidence; Third sentence: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Fourth sentence: Rejected because it is contrary to the greater weight of the evidence.
12-14. Rejected because they are contrary to the greater weight of the evidence.
Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Second sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are contrary to the greater weight of the evidence.
Rejected because it is contrary to the greater weight of the evidence.
Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Fourth sentence: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Remaining sentences: Rejected because they are contrary to the greater weight of the evidence.
First and third sentences: Rejected because they are contrary to the greater weight of the evidence; Second sentence: Accepted and incorporated in substance; Fourth sentence: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First, seventh and twelfth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second sentence: To the extent that it states that McCartney thought he saw Respondent throw Breedlove "into the booth window, smashing his head through the window," and that the "glass came at [McCartney]," it has been accepted and incorporated in substance. To the extent that it states that Respondent actually and intentionally threw Breedlove "into the booth window, smashing his head through the window," it has been rejected because it is contrary to the greater weight of the evidence; Third, fourth, fifth, sixth, eighth, ninth, tenth and eleventh sentences: Accepted and incorporated in substance.
First sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second, third and fourth sentences: Rejected because they are contrary to the greater weight of the evidence; Fifth sentence: Accepted and incorporated in substance.
First and fifth sentences: Accepted and incorporated in substance; Second sentence: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Third sentence: Rejected because it is contrary to the greater weight of the evidence; Fourth sentence: To the extent that it states that Respondent intentionally "caused the injury," it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
First sentence, before comma: Rejected because it is contrary to the greater weight of the evidence; First sentence, after comma: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.
Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First sentence: To the extent that it states that Respondent intentionally "shov[ed] Breedlove into the glass," it has been rejected because it is contrary to the greater weight of the evidence; Second sentence: Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted and incorporated in substance.
First sentence: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First and third sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
32-33. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First and second sentences: Accepted and incorporated in substance; Remaining sentences: Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and fourth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second, sixth and seventh sentences: Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third and fifth sentences: Accepted and incorporated in substance.
38-39. Accepted and incorporated in substance.
40. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
41-42. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
43-44. Rejected because they are more in the nature of summaries of what occurred at hearing than findings of fact.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a summary of evidence than a finding of fact.
47-48. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third and fourth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
52-54. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Remaining sentences: Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and third sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second sentence: Accepted and incorporated in substance; Fourth sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence, before comma: Accepted and incorporated in substance; Third sentence, after comma: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a summary of what occurred at hearing than a finding of fact.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
63-73. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
74. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
75-78. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
82-83. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a summary of what occurred at hearing than a finding of fact.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
88-89. Rejected because they are more in the nature of summaries of evidence than findings of fact based upon such evidence.
90-92. Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
93-96. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
99-101. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
102. Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
103-117. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
Rejected because it is more in the nature of a summary of what occurred at hearing than a finding of fact.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.
120-125. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First sentence: Rejected because it is more in the nature of a summary of what occurred at hearing than a finding of fact; Second sentence: Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Respondent's Proposed Findings of Fact
1-4. Accepted and incorporated in substance.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
8-14. Accepted and incorporated in substance.
Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
17-25. Accepted and incorporated in substance.
26-27. Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because, even if true and taken into consideration, it would not change the outcome of the instant case.
Accepted and incorporated in substance.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First, second and third sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Fourth sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted as true and considered, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third sentence: Accepted as true and considered, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
COPIES FURNISHED:
Susan L. Somers, Esquire Regional Legal Advisor Florida Department of Law
Enforcement
7265 Northwest 25th Street Miami, Florida 33122
James C. Casey, Esquire 10680 Northwest 25th Street Suite 202
Miami, Florida 33172-2108
A. Leon Lowry, II, 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
Michael Ramage, Esquire General Counsel
Florida Department of Law Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 25, 1995 | Final Order filed. |
| Aug. 13, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held June 8 and 9,1993. |
| Aug. 02, 1993 | Petitioner`s Proposed Findings of Fact and Conclusions of Law filed. |
| Jul. 30, 1993 | Respondent`s Proposed Hearing Officer`s Recommended Order, Findings of Fact, Argument, Citation of Authority, and Conclusions of Law filed. |
| Jul. 01, 1993 | Transcript (Vols 1-3) filed. |
| Jun. 25, 1993 | Petitioner`s Exhibit 22 filed. |
| Jun. 08, 1993 | Final Hearing Held 6/8-9/93; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| May 26, 1993 | (joint) Prehearing Stipulation filed. |
| May 20, 1993 | Respondent`s Demand for Discovery filed. |
| Apr. 15, 1993 | Second Notice of Hearing sent out. (hearing set for June 8 and 9, 1993; 10:15am; Miami) |
| Apr. 14, 1993 | CC Letter to SML from Susan L. Somers (re: Unavailable hearing dates)filed. |
| Apr. 14, 1993 | Letter to SML from James C. Casey (re: April 2, 1993 ltr of Suan L. Somers) filed. |
| Apr. 02, 1993 | Letter to SML from Susan L. Somers (re: unavailable dates for hearing) filed. |
| Mar. 23, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report within 10 days of the date of this order) |
| Mar. 18, 1993 | (Respondent) Motion for Continuance filed. |
| Jan. 05, 1993 | Order Requiring Prehearing Stipulation sent out. |
| Jan. 05, 1993 | Notice of Hearing sent out. (hearing set for 4/1/93; 9:00am; Miami) |
| Jan. 04, 1993 | (Respondent) Notice of Appearance; Respondent`s Response to Initial Order filed. |
| Dec. 28, 1992 | Ltr. to SML from Susan L. Somers re: Reply to Initial Order filed. |
| Dec. 22, 1992 | Ltr. to SML from S. Somers re: response to Initial Order filed. |
| Dec. 11, 1992 | Initial Order issued. |
| Dec. 07, 1992 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 20, 1994 | Agency Final Order | |
| Aug. 13, 1993 | Recommended Order | No excessive force intentionally used; inmate's injury the result of accid- ent occurring during his effort to free himself from officer's grasp. |
