STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-2451

)

LORI A. DEFISHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 27, 1997, by the Division of Administrative Hearings before its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

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

For Respondent: Lori DeFisher

4123 West 21st Street Panama City, Florida 32405

STATEMENT OF THE ISSUES

The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated March 31, 1997, Petitioner Criminal Justice Standards and Training Commission charged Respondent Lori A. DeFisher with violating

Sections 943.1395(6), 943.1395(7), and 943.13(7),

Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.

Respondent requested a formal hearing to contest the charges set forth in the Administrative Complaint. Petitioner referred the case to the Division of Administrative Hearings on May 21, 1997.

During the hearing, Petitioner presented the testimony of three witnesses: Captain Ronnie David Holland, Donald Pribbenow, and Inspector Chris Hubbard. The video deposition and transcript of Zachary Mark Richards was stipulated to and filed on

October 22, 1997. Petitioner offered six exhibits which were admitted into evidence.

Respondent testified on her own behalf. She did not offer any exhibits into evidence.

A transcript of the proceeding was filed on November 24, 1997. Petitioner filed a Proposed Recommended Order on December 3, 1997. Respondent did not file proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550.

2. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution.

3. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility.

4. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official.

5. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him.

6. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report.

7. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent.

8. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag.

9. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison.

10. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship.

11. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag.

12. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag.

13. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.

    CONCLUSIONS OF LAW

    
    

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

15. Petitioner must prove by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers, including the following:

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

    Section 943.13(7), Florida Statutes.

    
    

17. Rule 11B-27.0011(4), Florida Administrative Code, in effect at the time of the alleged offense, defines "good moral character" for purposes of the implementation of disciplinary action against law enforcement and correctional officers. That rule states as follows in relevant part:

    1. For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(6) or (7), a certified officer's failure to maintain a good moral character, as required by Section 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

          . . . .

          Rule 11B-27.0011(4)(a), Florida Administrative Code.

          
          

18. Section 944.47, Florida Statutes, states as follows in pertinent part:

    (1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

    1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

    * * *

    (c) It is unlawful for any inmate of any state correctional institution or any person while upon the ground of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

    
    

    (2) A person who violates any provision of this section as it pertains to an article of contraband described in subparagraph (1)(a)1. or subparagraph (1)(a)2. is guilty of a felony of the third degree . . . .

    
    

    Sections 944.47(1)(a)1., 944.47(1)(c), and 944.47(2), Florida Statutes.

19. Petitioner has met its burden of proving by clear and convincing evidence that Respondent failed to maintain good moral character within the meaning of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.

20. Sometime between September 1, 1995 and August 23, 1996, Respondent introduced into or possessed upon the grounds of the Bay Correctional Facility, a state correctional institution, contraband, to wit: written communication in violation of Section 944.47(1)(a)1., Florida Statutes.

21. Section 943.1395(7), Florida Statutes, provides as follows in relevant part:

    (7) 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 state wide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. . . .

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

    5. Issuance of a reprimand.

    Section 943.1395(7), Florida Statutes.

    
    

22. Section 943.1395(8), Florida Statutes (1995), states as follows in pertinent part:

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures for implementing the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating

    circumstances to be considered when imposing the penalties provided in subsection (7).

    * * *

    1. A hearing officer assigned to conduct a hearing under s. 120.57(1) regarding allegations that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7) must in his recommended order:

       1. Adhere to the disciplinary guidelines and penalties set forth in subsections (6) and

          (7) and the rules adopted by the commission for the type of offense committed.

       2. Specify, in writing, any aggravating or mitigating circumstance that he considered in determining the recommended penalty.

       
       

       Any deviation from the disciplinary guidelines or prescribed penalty must be based upon circumstances or factors that reasonably justify the aggravation or mitigation of the penalty. Any deviation

       
       

       from the disciplinary guidelines or prescribed penalty must be explained, in writing, by the hearing officer.

       
       

       Sections 943.1395(8)(a) and 943.1395(8)(d), Florida Statutes.

       
       

23. Rule 11B-27.005(5), Florida Administrative Code, provides as follows in relevant part:

    1. When the Commission finds that a certified officer has committed an act which violates section 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       
       

       1. For the perpetration by the officer of an act, which would constitute any felony offense, pursuant to Rule 11B-27.0011(4)(a), F.A.C., . . . the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. Specific violations and penalties that will be imposed, absent mitigating circumstances, include the following:

          * * *

          6. Introduction of Contraband Revocation Rule 11B-27.005(3)(a)6., Florida Administrative Code.

24. Rule 11B-27.005(6), Florida Administrative Code, provides as follows:

    1. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by evidence presented to the Commission if pursuant to Section 120.57(2), F.S., or to a hearing officer if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more of the following aggravating or mitigating circumstances:

       
       

       1. Whether the officer used his or her official authority to facilitate the misconduct;

       2. Whether the misconduct was committed while the officer was performing his or her other duties;

       3. The officer's employment status at the time of the final hearing before the Commission;

       4. The recommendation of character or employment references;

       5. The number of violations found by the Commission;

       6. The number of prior disciplinary actions taken against the officer by the Commission;

       7. The severity of the misconduct;

       8. The danger to the public;

       9. The length of time since the violation;

       10. The length of time the officer has been certified;

       11. The actual damage, physical or otherwise, caused by the misconduct;

       12. The deterrent effect of the penalty imposed;

       13. Any effort of rehabilitation by the officer;

       14. The effect of the penalty upon the officer's livelihood;

       15. The penalties imposed for other misconduct;

       16. The pecuniary benefit or self-gain to the officer realized by the misconduct;

       17. The officer's compliance with the terms and condition of any Commission-ordered probation;

       18. Whether the misconduct was motivated by unlawful discrimination;

       19. Prior Letter of Guidance;

       20. The effect of disciplinary or remedial action taken by the employing agency and/or recommendation of employing agency administrator.

    Rule 11B-27.005(6), Florida Administrative Code.

    
    

25. The following factors have been considered in mitigation of Respondent's misconduct: (a) Respondent is currently a full-time employee of Minuteman Security where she holds the position of lieutenant; (b) Respondent is currently enrolled in a local police academy where she lacks two classes before completing the course of study for certification as a law enforcement officer; (c) Respondent lacks three classes before she completes the required curriculum for an Associate of Arts in correctional management; (d) Respondent is an unarmed security officer instructor with a DI license and a G license;

    1. Respondent was hired as a member of the auxiliary reserve for the Panama City Beach Police Department pending the outcome of this proceeding; (f) Respondent is guilty of only one violation;

    (g) Petitioner has not taken any prior disciplinary actions against Respondent; (h) Respondent was certified in October of

    1995, less than one year before she was accused of writing the contraband letter; (i) Respondent's misconduct did not cause any actual damage, physical or otherwise; (j) As a wife and the mother of four children, revocation of Respondent's certification will have an unduly harsh effect on her livelihood;

    (k) Respondent did not earn any benefit or self-gain by her misconduct; (l) Respondent's misconduct was not motivated by unlawful discrimination; and (m) Respondent lost her employment at Bay Correctional Facility.

26. The following factors have been considered in aggravation of Respondent's misconduct: (a) Respondent used her official authority to facilitate her misconduct;

    (b) Respondent's misconduct was committed while she was performing her duties as a correctional officer; (c) Even though she was not charged with a crime, Respondent's misconduct is equivalent to a third degree felony; (d) Imposition of a penalty less than revocation of certification will have a deterrent effect; (e) Respondent has not admitted any fault and, therefore, has not made any effort toward rehabilitation.

27. The above-referenced mitigating and aggravating factors reasonably justify deviation from the disciplinary guidelines or prescribed penalty. Respondent's misconduct does not warrant revocation of her certification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years.

RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997.

COPIES FURNISHED:

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Lori DeFisher

4123 West 21st Street Panama City, Florida 32405

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-002451

Orders for Case No: 97-002451