STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 19-3602PL

ANGELO BRITTON,

Respondent.

/

RECOMMENDED ORDER

An administrative hearing was conducted by teleconference on August 28, 2019, at sites in Tallahassee and Panama City Beach, Florida, before Garnett W. Chisenhall, an Administrative Law Judge with the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: Ray Anthony Shackelford, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Angelo Britton, pro se

(Address of Record) STATEMENT OF THE ISSUES

Whether Respondent, Angelo Britton, failed to maintain good moral character required of correctional officers by committing

the violations alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On May 22, 2019, Petitioner, Florida Department of Law Enforcement (“the Department”), filed an Amended Administrative Complaint before the Florida Criminal Justice Standards and Training Commission against Angelo Britton (“Mr. Britton”), alleging that he violated sections 827.071(5)(a), 847.011(2), and 943.1395(7), Florida Statutes (2016),1/ as well as Florida

Administrative Code Rule 11B-27.0011(4)(a) and (b), by failing to maintain good moral character. Mr. Britton requested an administrative hearing, and the Department referred the case to DOAH on July 5, 2019. The hearing was held as scheduled on August 28, 2019.

The Department offered the testimony of Sergeant Benjamin Dowdy, Special Victims Unit lead investigator; Philip Spires, digital evidence investigator; Stacy Lehman, the Department’s training and research manager; Heather Tice, Special Victims Unit investigator; and Larry Howard.2/ Mr. Britton testified on his own behalf and called no other witnesses. The Department’s Exhibits 1, 3 through 10, 12 through 17, 21, and 22 were admitted into evidence. Mr. Britton did not offer any exhibits into evidence.

The one-volume Transcript of the final hearing was filed on September 19, 2019, and the parties’ proposed recommended orders were due on September 29, 2019. After Mr. Britton requested an extension, the undersigned issued an Order on September 27, 2019, extending the deadline to November 1, 2019. Both parties filed timely proposed recommended orders that were considered in the preparation of this Recommended Order.3/

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record of this proceeding, the following Findings of Fact are made:

Findings Regarding the Parties and Events Preceding the Incident at Issue

1. The Department is the state agency responsible for enforcing standards applicable to correctional officers, pursuant to section 943.12 and chapter 120, Florida Statutes.

2. The Criminal Justice Standards and Training Commission certified Mr. Britton as a corrections officer in the State of Florida on July 1, 2015. He received Corrections Certification Number 325155.

3. Mr. Britton and his ex-wife have been involved in a bitter custody battle over their six-year-old daughter since

   
   

   2013. According to Mr. Britton, his ex-wife kept him from seeing their daughter after alleging that he sexually abused the child.

4. Mr. Britton also claims that his ex-wife has been stalking him and suspects that she is responsible for initiating approximately 15 child abuse investigations of him by the Department of Children and Families.

5. In February of 2017, Mr. Britton moved to an apartment complex in DeFuniak Springs, Florida, in order to be closer to his daughter. Soon thereafter, he met Larry Howard, who lives next door to him. Mr. Britton told Mr. Howard that he could not afford to pay for WiFi, and Mr. Howard agreed to let Mr. Britton use his WiFi in exchange for at least $10.

6. Mr. Howard did not give his WiFi password to anyone else.

7. Mr. Britton enjoys spending time with children.

   
   

   He babysits for friends and neighbors, and neighborhood children often play in his apartment.

   Findings Regarding the Incident at Issue and the Resulting Investigation

   
   

8. On approximately May 23, 2017, three images of child pornography4/ were uploaded5/ to a Gmail account designated as “mysexyplay69@gmail.com” at an internet protocol (“IP”) address associated with DeFuniak Springs. An IP address is used to

   
   

   identify the location where someone has connected to the internet.

9. That action prompted Google, Inc. to transmit a report to the National Center for Missing and Exploited Children (“NCMEC”). The report included the aforementioned images and IP address. NCMEC then forwarded that information to the Walton County Sheriff’s Office (“WCSO”).

10. The WCSO’s Special Victims Unit, which investigates online exploitation and abuse of children, subpoenaed Charter Communications in order to determine who owned the IP address from which the pornographic images where uploaded, and Charter Communications reported that Mr. Howard was the owner.6/

11. WCSO investigators obtained a search warrant and searched Mr. Howard’s apartment on August 8, 2017. They “triaged” several digital devices found on site. Triaging is a process that uses scanning software to document the data stored on digital devices. The investigators found no child pornography or incriminating evidence on any of Mr. Howard’s devices and concluded that he was not responsible for uploading the pornographic images at issue.

12. Mr. Britton observed the search of Mr. Howard’s home.

    
    

13. Mr. Howard disclosed to the investigators that he allowed Mr. Britton to use his WiFi and that Mr. Britton was the only other person who knew his password.

    
    

14. The investigators then subpoenaed Facebook for records concerning when and where Mr. Britton used his Facebook account. The records produced by Facebook revealed that Mr. Britton had used Mr. Howard’s WiFi to log onto Facebook as late as June 23, 2017. As noted above, the child pornography images at issue were uploaded on approximately May 23, 2017.

15. After obtaining a search warrant, the WCSO Special Victims Unit investigators searched Mr. Britton’s apartment on October 19, 2017. They seized a cellphone, and a subsequent forensics analysis revealed the cellphone contained search terms that had been used in 2015 to search for items pertaining to lactation, sex with pregnant women, and sex with minors.

16. Mr. Britton acknowledges being interested in pornography involving lactation and pregnant women but denies being interested in child pornography.

17. Mr. Britton had disposed of a tablet and a computer at some point prior to the search of his residence.

18. The search terms found on Mr. Britton’s cellphone led the investigators to conclude that Mr. Britton uploaded the pornographic images at issue to the Gmail account.

    Ultimate Findings

    
    

19. Either Mr. Britton or Mr. Howard uploaded the child pornography at issue to the Gmail account designated as “mysexyplay69@gmail.com.”

    
    

20. After searching his residence and electronic devices, the WCSO found nothing indicating that Mr. Howard was the responsible party, and Mr. Howard testified that Mr. Britton was the only other person with access to his WiFi.

21. Mr. Howard was a very credible witness and gave no reason for the undersigned to question the veracity of his testimony.

22. In contrast, the substance of Mr. Britton’s testimony and his overall demeanor during the final hearing gave the undersigned considerable cause to question the veracity of his testimony.

23. For instance, Mr. Britton offered two implausible explanations for why the searches for child pornography were found on his cellphone. His first explanation is that the searches were “redirects” from adult porn websites. However, internet searches cannot be redirects.7/ Mr. Britton’s second explanation is that his ex-wife placed the pornographic searches on his cell phone, but Mr. Britton offered no explanation as to how his ex-wife gained access to his phone during the three months in 2015 when the search terms in question were used.

24. Mr. Britton acknowledged having a sexual interest in pregnant women and lactation, and some of the searches pertained to those topics. That undermines any suggestion that someone else initiated the searches in question.

    
    

25. In sum, the evidence clearly and convincingly demonstrates that Mr. Britton, rather than Mr. Howard, is responsible for uploading the pornographic images at issue to “mysexyplay69@gmail.com” and thus committed the violations alleged in the Department’s Administrative Complaint.

    CONCLUSIONS OF LAW

    
    

26. Pursuant to section 120.57(1), Florida Statutes, DOAH has jurisdiction over the parties and the subject matter of this proceeding.

27. A proceeding, such as this one, to impose discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm’n , 281 So. 2d 487, 491 (Fla. 1973).

    Accordingly, the Department must prove the charges by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. &

    Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla.

    1987)); Nair v. Dep’t of Bus. & Prof’l Reg., Bd. of Med., 654 So.

    
    

    2d 205, 207 (Fla. 1st DCA 1995).

    
    

28. Regarding the standard of proof, the court in Slomowitz

    
    

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

    
    

    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 explicit and the witnesses must be lacking in confusion as to the facts in issue. 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.

    
    

    Id.

    
    

29. Disciplinary statutes are penal in nature and must be

    
    

    construed in favor of the individual sought to be penalized. Munch v. Dep’t of Bus. & Prof’l Reg., 592 So. 2d 1136, 1143 (Fla.

    1st DCA 1992). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel & Rest. Comm’n v. Sunny Seas No. One, 104 So. 2d 570, 571 (1958).

30. The Amended Administrative Complaint alleged that Mr. Britton violated section 847.011(2), which provides:

    (2) Except as provided in paragraph (1)(c), a person who knowingly has in his or her possession, custody, or control any . . . picture . . . [or] photograph . . . of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument for obscene use, or purporting to be for obscene use or purpose, without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, commits a misdemeanor of the second degree . . .

    
    

31. Section 847.001(10), defines “obscene,” in part, as something “[t]he average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest . . .” The statute also defines “obscene” as something

    
    

    depicting or describing “in a patently offensive way, sexual conduct as specifically defined herein . . .”

32. Section 847.001(16), defines “sexual conduct” as:

    
    

    actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

    
    

33. As noted above, Mr. Britton admitted that the images at issue “depict sexual conduct, as defined in

    [section] 827.071(1)(h) F.S., by a child less than 18 years of age.” Like section 847.001(16), section 827.071(1)(h), also defines “sexual conduct” as:

    actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

    
    

34. The evidence clearly and convincingly demonstrated that Mr. Britton uploaded the pornographic images at issue to

    
    

    “mysexyplay69@gmail.com.” Thus, the Department has proven that Mr. Britton violated section 847.011(2).

35. Mr. Britton is also charged with violating section 827.071(5)(a), which states that:

    It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession, control, or intentional viewing of each such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or presentation is a separate offense. . . . A person who violates this subsection commits a felony of the third degree . . .

    
    

36. For the reasons stated above, the evidence also clearly and convincingly demonstrated that Mr. Britton violated

    section 827.071(5)(a).

    
    

37. Section 943.13(7), requires that anyone employed as a corrections officer must have “good moral character,” and the Amended Administrative Complaint alleges that Mr. Britton violated subsections (a) and (b) of rule 11B-27.0011(4). The version of the aforementioned rule in effect when the images at issue were uploaded to “mysexyplay69@gmail.com” provides that:

    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:

    
    

    1. The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.

       
       

    2. 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 . . . (emphasis added)

    
    

    The rule continues by identifying section 847.011 as describing acts demonstrating an officer has failed to maintain good moral character.

38. Because Mr. Britton was found to have violated section 847.011(2) and committed a third degree felony by violating section 827.071(5)(a), the Department has proven that

    Mr. Britton violated rule 11B-27.0011(4)(a) and (b) and failed to maintain good moral character as required by section 943.13(7).

39. Section 943.1395(7), sets forth the penalties for failing to maintain good moral character and requires the Commission to adopt a rule setting forth disciplinary guidelines. The version of rule 11B-27.005 in effect when Mr. Britton uploaded the pornographic images to “mysexyplay69@gmail.com” provides, in pertinent part, that “[f]or the perpetration by the

    
    

    officer of an act that would constitute any felony offense, pursuant to paragraph 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.”

40. Section (6) of rule 11B-27.005 sets forth aggravating and mitigating circumstances enabling the Commission to deviate from the disciplinary guidelines. While the evidence does not demonstrate that any mitigating circumstances apply to the instant case, “severity of the misconduct” is an aggravating circumstance under rule 11B-27.005(6) that does apply.

41. Revocation of Mr. Britton’s certification is appropriate given the severity of the misconduct.

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 Mr. Britton failed to maintain good moral character as required by law and revoking Mr. Britton’s correctional officer certification.

DONE AND ENTERED this 2nd day of December, 2019, in Tallahassee, Leon County, Florida.

S

G.W. Chisenhall 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 2nd day of December, 2019.

ENDNOTES

1/ All statutory references will be to the 2016 version of the Florida Statutes.

2/ The Department also offered the testimony of Courtney McClain, who alleged that Mr. Britton molested her approximately 12-year- old daughter. Over Mr. Britton’s objection, the undersigned allowed the Department to present the testimony but reserved ruling on its ultimate admissibility. After considering the aforementioned testimony and all of the circumstances, the undersigned hereby excludes Ms. McClain’s testimony because its relevance is substantially outweighed by the danger of unfair prejudice. Based on the same reasoning, the undersigned excludes Exhibit 20 from the Department. See § 90.403, Florida Statutes (providing that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”). See generally Citrus Cnty. v. McQuillin, 840 So. 2d 343, 345 (Fla. 5th DCA 2003)(assessing an argument that admission of a photograph of a dead body would be unduly inflammatory in contravention of section 90.403 and noting that “the admission of photographs is within the trial court’s broad discretion and its rulings will

not be overturned on appeal unless there is a clear abuse of discretion.”).

3/ Mr. Britton filed a pleading entitled “Objection to Petitioner’s Recommendation” on November 4, 2019, expressing his agreement and disagreement with individual sections of the Department’s Proposed Recommended Order. Because Florida Administrative Code Chapter 28-106 does not authorize such pleadings, the undersigned has disregarded it.

4/ There is no dispute that the three images at issue depict sexual conduct, as defined in section 827.071(1)(h), Florida Statutes, by a child less than 18 years of age.

5/ A user can upload images, emails, and documents to a Gmail account for storage. Afterwards, an uploaded file can be downloaded to another device and accessed without need of an internet connection.

6/ Sergeant Benjamin Dowdy, an investigator with the WCSO’s Special Victims Unit, explained how the IP address was used in this investigation:

So through the cybertip, whenever someone logs into an account or basically accesses things through the Internet, their Internet protocol address is used to identify the location from where they are connecting from. And what happens is [] whenever the electronic service providers – such as Google, Facebook, Instagram – they submit the tip to NCMEC, they record the Internet protocol address from where that traffic came from. And so that was – is what was relevant to this because, in the cybertip, the IP address was listed as being responsible for where that came from.

7/ A “redirect” occurs when one visits a web site, is trying to close that site, and another screen appears directing one to another web site. People v. Mahoney, 2013 Ca. App. LEXIS 835, at *12. Heather Tice, a special victims investigator for the WCSO, explained during the final hearing that internet searches cannot be redirects, and her testimony is credited due to her extensive experience and/or training.

COPIES FURNISHED:

Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

Angelo Britton

(Address of Record-eServed)

Jason Jones, General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

Dean Register, Program Director

Division of Criminal Justice Professionalism Services 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: 19-003602PL

Orders for Case No: 19-003602PL