STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

SCOTT D. GRZEGORCZYK,

Respondent.

/

Case No. 13-3525PL

RECOMMENDED ORDER

On November 13, 2013, Administrative Law Judge Lisa Shearer Nelson conducted a hearing pursuant to section 120.57(1), Florida Statutes (2013), by video teleconferencing with sites in Jacksonville and Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Scott D. Grzegorczyk, pro se

(Address of record) STATEMENT OF THE ISSUE

The issue to be addressed is whether Respondent failed to maintain good moral character in violation of section 943.1295(7), Florida Statutes (2012), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On March 12, 2013, Petitioner, Criminal Justice Standards and Training Commission, filed an Administrative Complaint against Respondent, Scott D. Grzegorczyk, alleging that he failed to maintain good moral character in violation of section 943.1395(7) and Florida Administrative Code Rule 11B- 27.0011(4)(b). Petitioner alleges as a factual basis for the charge that Respondent committed a battery upon Lucretia Porter in violation of section 784.03, Florida Statutes, or any lesser- included offenses.

On May 13, 2013, Respondent executed an election of rights form disputing the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1). On September 16, 2013, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.

The case was noticed for hearing to commence on November 13, 2013, and proceeded as scheduled. Petitioner presented the testimony of Lucretia Porter and Deputy Nate Jordan of the Calhoun County Sheriff’s Office, and Petitioner’s Exhibits 1-6 were received into evidence. Respondent testified on his own behalf but submitted no exhibits.

The Transcript of the proceedings was filed with the Division on December 4, 2013. Petitioner filed its Proposed

Recommended Order on December 10, 2013. As of the date of this Recommended Order, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was licensed as a correctional officer, holding certificate number 286299.

2. Respondent rented a trailer from Lucretia Porter. At some point, Respondent got behind on his rent, and Ms. Porter evicted him, giving him 80 days to remove his belongings from her trailer.

3. On October 5, 2012, at approximately 9:30 a.m., Respondent came to Ms. Porter’s workplace, Scandy-White Boats, to talk to Ms. Porter. According to Ms. Porter, he smelled of alcohol and she got him to go outside with her to talk by her

   son-in-law’s truck. Respondent wanted to talk to her about his belongings left in the trailer. She informed him that he needed to get his belongings out of the trailer, or she would have the trash service take them away.

4. Ms. Porter believed Respondent was intoxicated and told him to go home. Instead, he stepped up close to her face, called her a “f------ bitch just like my mama told me” and pushed her left shoulder with two fingers of his right hand.

   
   

5. Ms. Porter called to her co-workers to call the police.

   
   

   Respondent left the premises and went into the woods behind the business.

6. Ms. Porter was questioned by Deputy Nate Jordan. He took a sworn statement from her and attempted to locate Respondent, but did not find him at that time. Deputy Jordan found Respondent walking on State Road 71 about two or three hours later. He did not at that time seem intoxicated.

7. Deputy Jordan filed a complaint affidavit against Respondent for battery, in violation of section 784.03, and Respondent was arrested. Respondent pleaded no contest to assault, and on December 4, 2012, he was adjudicated guilty and sentenced to time served.

8. Respondent denies pushing Ms. Porter. He claims that she was upset he was not leaving his dirt bike and tools, because she believed that he would never pay her what he owed in back rent and felt he should leave her something. Respondent admits calling her a bitch but denied the other profanity.

9. Respondent’s account was not credible. He stated that when arrested, he asked why, and was told “battery on Lucretia Porter.” In response to this answer, he stated, “No, I did not push her,” despite the fact that it did not appear as if the specific accusation had ever been described. In fact, one of his

   
   

   complaints was that Deputy Jordan did not really question him or give him much information.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

11. This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent’s certification as a correctional officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t

    of Banking & Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. As stated by the Supreme Court of Florida,

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

13. Section 943.13 establishes the minimum qualifications for certification of law enforcement officers in Florida. Subsection (7) provides that an officer must have "good moral character as determined by a background investigation under procedures established by the commission."

14. Subsections 943.1395(7) and (8) state:

    
    

    (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 statewide 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. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

    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.

    
    

    (8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer 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). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the

    
    

    severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for prohibited conduct. The penalties must be consistently applied by the commission.

    
    

15. The Commission has defined “good moral character” for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). The Administrative Complaint alleges that Respondent’s conduct violated rule 11B-27.0011(4)(b). At the time of the alleged offense, rule 11B-27.0011(4)(b) provided in pertinent part:

    (4) For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    * * *

    
    

    (b) Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    1. Sections . . . 784.011, 784.03, . . . , F.S.

    
    

16. Section 784.011 defines “assault” as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with the apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Assault is a misdemeanor of the second degree.

17. Section 784.03(a)(a) defines “battery” as when a person:

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

    2. Intentionally causes bodily harm to another person.

       
       

18. Battery is a misdemeanor of the first degree.

    
    

19. Both battery and assault are listed as offenses in rule 11B-27.0011(4) which, if committed, would indicate a failure to maintain good moral character.

20. Petitioner has proven the charge against Respondent by clear and convincing evidence. There is evidence to demonstrate that Respondent touched Ms. Parker against her will, a battery, and pled to the lesser charge of assault.

21. The Commission has adopted disciplinary guidelines to assist in determining the appropriate penalty to be imposed for violations of section 943.1395(7) and rule 11B-27.0011. Rule 11B-27.005(5)(b) provides that for both assault and battery, the recommended penalty is suspension of the officer’s certification.

    
    

22. The undersigned has considered the penalty proposed by Petitioner and finds it to be appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding that Respondent has violated the provisions of section 943.1395(7) and rule 11B- 27.0011(4)(b). It is further recommended that his certificate as a corrections officer be suspended prospectively for a period of

60 days, to begin 15 days after the entry of the final order; followed by probation for one year subject to whatever conditions the Commission deems appropriate.

DONE AND ENTERED this 18th day of December, 2013, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2013.

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Scott D. Grzegorczyk (Address of record)

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, 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 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: 13-003525PL

Orders for Case No: 13-003525PL