STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

HENRY G. THOMAS, )

)

Respondent. )

Case No. 03-1714PL

)

RECOMMENDED ORDER

Notice was provided and on July 17, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the offices of the Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Henry G. Thomas, pro se

111 South Ward Street Quincy, Florida 32351

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent in association with his correctional certificate?

PRELIMINARY STATEMENT

On March 7, 2003, by an Administrative Complaint in Case No. 17294, Petitioner accused Respondent of the introduction of written communications into the Gadsden Correctional Institution other than through authorized regular channels. If those facts are true, Respondent is accused of violating Sections 943.13(7), 943.1395(6) and (7), and 944.47(1)(a), Florida Statutes, together with Rule 11B-27.0011(4)(a), Florida Administrative Code. Respondent disputed the underlying factual allegations calling for a formal hearing pursuant to Section 120.57(1), Florida Statutes. On May 12, 2003, the case was forwarded to the Division of Administrative Hearing for assignment of an administrative law judge to conduct the formal hearing. The hearing was noticed and held on the date described.

Petitioner presented Captain Lillie William Everson, Linda Cannon and Barbara Daugherty as its witnesses. The latter witness testified by telephone. Petitioner's exhibits numbered one through four were admitted. Respondent elected not to testify or present witnesses. Respondent's exhibits numbered one through eight were admitted.

Official recognition was given those provisions within Chapters 943 and 944, Florida Statutes, that have been mentioned and the overall Chapter 11B-27, Florida Administrative Code to include Rules 11B-27.005 and 11B-27.0011(4)(a), Florida Administrative Code.

On July 28, 2003, a hearing transcript was filed.

Petitioner submitted a proposed recommended order and Respondent offered a written submission to support their views of the case. Those items have been considered in preparing the recommended order. All citations are to Florida Statutes (2000) unless

otherwise indicated.

FINDINGS OF FACT

1. When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer.

2. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility.

3. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting.

4. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided.

5. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids.

6. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said:

   Hello Sweetheart!

   
   

   How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes.

   
   

   I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other.

   
   

   You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better.

   
   

   You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes.

   
   

   Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear.

   
   

   Yours truely, [sic]

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this

   case consistent with Sections 120.569 and 120.57(1), Florida Statutes (2002).

8. By this action Petitioner seeks to discipline Respondent in his capacity as certified corrections officer. Petitioner bears the burden of proving the allegations in the Administrative Complaint before discipline can be imposed against Respondent's certificate as a corrections officer. The nature of that proof must be by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) and Department of Banking and Finance Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996).

9. The facts concerning Respondent's conduct which have been found are considered in accordance with the necessity for Respondent to maintain good moral character. Section 943.1395(7).

10. The legal consequences of Respondent's failure to maintain good moral character are specifically addressed within Rule llB-27.0011(4)(a), Florida Administrative Code, where acts that would constitute felony offenses, whether criminally prosecuted or not, would create grounds for discipline in accordance with Section 943.1395(7).

11. A felony offense has been established by the conduct reported in the findings of fact. The facts were found on clear and convincing evidence. That felony pertains to the

    introduction of written communications upon the grounds of the Institution be provided to Ms. Rivoire, other than by regular channels, as authorized by the officer in charge of the Institution. Section 944.47(1)(a). By these acts Respondent is guilty of conduct, which by its terms, constitutes a felony of the third degree punishable as provided in Section 775.082,

    775.083 or 775.084, as envisioned by Section 944.47(2). In summary Respondent has violated Section 943.1395(7) and is subject to the penalties contained in that provision.

12. Disciplinary guidelines are established in Rule 11B- 27.005(5), Florida Administrative Code, pertaining to the violation of Section 943.13(7). It has been determined that the recommended penalty for the introduction of contraband, written communications, is revocation, absent mitigating circumstances. No mitigating circumstances were established.

13. The proof did not establish a violation of Section 943.1395(6).

RECOMMENDATION

Upon consideration of the facts found and Conclusions of Law reached, it is

RECOMMENDED:

That a Final Order be entered revoking the Respondent's certification as a correctional officer.

DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2003.

COPIES FURNISHED:

Henry G. Thomas

111 South Ward Street Quincy, Florida 32351

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Criminal Justice Standards

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

Michael Ramage, General Counsel 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 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: 03-001714PL

Orders for Case No: 03-001714PL