STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1876

)

DAVID E. HANCOCK, )

)

Respondent. )

)

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1877

)

FLOYD W. WINKLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 21, 1990, and March 22, 1991, at Panama City, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Richard Ogburn, Esquire

Post Office Box 923

Panama City, Florida 32402 STATEMENT OF THE ISSUES

The issue in this proceeding is whether Respondents' certification as correctional officers should be disciplined.

PRELIMINARY STATEMENT

On January 11, 1990, the Petitioner, Criminal Justice Standards and Training Commission, filed separate Administrative Complaints against the Respondents, David E. Hancock and Floyd W. Winkle, seeking imposition of an appropriate penalty, for alleged violations of Chapter 943, Florida Statutes. Specifically, the Commission alleged that Respondents lacked the requisite good moral character for correctional officers because on or about March 8, 1989, Respondent, Winkle used excessive force on an inmate and that Respondent Hancock aided, abetted, counseled or procurred Respondent Winkle in the use of excessive force on the inmate. See Sections 943.1395(5)5, (6) and 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code.

At the hearing, Petitioner called three witnesses and introduced one exhibit into evidence. Respondents each testified in his own behalf and offered two exhibits into evidence.

Petitioner and Respondent did not timely file any proposed recommended orders.

FINDINGS OF FACT

1. On August 28, 1987, Respondent, David E. Hancock, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-02. On March 4, 1988, Respondent, Floyd W. Winkle, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-03.

   
   

2. In March, 1989, Respondents were employed as correctional officers by the Corrections Corporation of America (CCA). CCA operates the county corrections facilities for Bay Counnty, Florida. Additionally, CCA is responsible for booking new arrestees into the jail facility.

   
   

3. On March 11, 1989, Respondent Hancock was the supervisor of the night shift at the main jail facility in Bay County. Respondent Winkle was the booking officer.

   
   

4. The evening of the 11th was a very heavy evening for arrests. The facility was understaffed for the numbers of arrests being processed. In fact, the holding cells, located in the basement of the jail, were full and female prisoners were being held in the interview rooms across the hall from the holding cells.

   
   

5. Marcus Kitchens was brought to the jail in a highly intoxicated state. He was bleeding and exhibited lacerations and abrasions to his face and limbs. Mr. Kitchens was also in a very noisy and rowdy state.

   
   

6. During the course of the evening, one of the female prisoners requested to use the restroom facilities. These facilities are located in the holding cells which were occupied by the male prisoners.

   
   

7. The male prisoners were transfered to an interview room so that the female prisoner could use the restroom facility in the holding cell. The transfer was made by Officer Winkle. One of the inmates was Marcus Kitchens. He had not yet been officially booked into the jail.

8. While transferring the male prisoners back to the holding cell Mr. Kitchens asked Officer Winkle for a blanket. For a number of valid security reasons jail policy does not permit a prisoner to have a blanket until the prisoner is officially booked into the facility and on his her her way to a more permanent cell. When Mr. Kitchens was told that he could not have a blanket he became violent and charged Officer Winkle, hitting the officer on the left side of face with his fist and knocking the officer's glasses off. Officer Winkle pushed Mr. Kitchens into the holding cell. Mr. Kitchens grabbed Officer Winkle by the shirt and pulled him into the holding cell with him. The two landed up against one of the walls of the holding cell and Mr. Kitchens hit Officer Winkle several more times in the chest and abdomen with his fist.

   While Officer Winkle was trying to block the blows, Mr. Kitchens hit Officer Winkle again on the left side of the face.

   
   

9. Officer Winkle then grabbed Mr. Kitchens and put him on the floor.

   
   

10. Officer Hancock heard the noise from the altercation and responded from another part of the basement area to the site of the altercation. By the time Officer Hancock arrived, Officer Winkle had Mr. Kitchens on the floor. Officer Winkle was sitting on top of Mr. Kitchens trying to subdue him. Officer Hancock stepped in between Officer Winkle and the inmate, put his knee into Mr. Kitchens chest, grasped the shoulder area and shoved Mr. Kitchens against the back wall of the holding cell. Officer Hancock inquired if Officer Winkle was alright. After Officer Winkle responded that he was, Officer Hancock told him to leave the cell. Officer Winkle left the cell and Officer Hancock released Mr. Kitchens from the wall. Mr. Kitchens began to charge Officer Hancock. Officer Hancock ordered him not to move and Mr. Kitchens sat back down on the floor. Officer Hancock left the cell and the door was locked. The entire altercation to the close of the cell door lasted a maximum of two and one-half minutes.

    
    

11. It was while Respondents were in the holding cell with Mr. Kitchens that the alleged excessive use of force occurred by Officer Winkle banging Mr. Kitchens' head against the floor and hitting him three times on the side of the head with his fist after Mr. Kitchens had submitted to the officers.

    
    

12. The use of excessive force was testified to by an officer who arrived from another part of the basement area after the altercation began and who could only have seen the last few seconds of the incident. The only testimony this officer gave regarding Officer Hancock was that while he was leaning against the cell wall he told Officer Winkle that Mr. Kitchens was "all his" after which Officer Winkle allegedly banged Mr. Kitchens' head on the floor and punched him on the side of the head. Contrary to this officer's testimony and corroborative of Respondents' testimony was the testimony of the nurse on duty at the jail facility. She did not see any excessive use of force and did not hear Officer Hancock make the statement referenced above while the officers were in the holding cell. She also testified that Mr. Kitchen's appeared to be struggling somewhat while he was on the floor. Officer Hancock testified that he told Officer Winkle Mr. Kitchens was "all his" after the officers had locked the door to the holding cell. Officer Hancock made the statement in response to Officer Winkle's complaint that he needed help in booking. The statement was meant to communicate to Officer Winkle that help would not be forthcoming and that he had to handle Mr. Kitchens during the booking process. Clearly, given the facts of this case, such a vague statement, regardless of where it was made, does not constitute clear and convincing evidence that Officer Hancock aided, abetted, counseled or procured any battery being effected against Mr. Kitchens.

13. Moreover, this case boils down to a swearing match between the various parties and witnesses involved. On these facts and given the demeanor of the witnesses, such a swearing match does not constitute clear and convincing evidence that Respondents have failed to maintain the good moral character required of correctional officers. Additionally, given the fact that the Respondents were subdueing a violent inmate and the very short time span in which the alleged use of force occurred it is improbable that any excessive force was used which would reflect on the character of either Respondent. Therefore the Administrative Complaints against each Respondent should be dismissed. 1/

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

15. Chapter 943, Florida Statutes, regulates the certification of law enforcement officers in Florida.

    Section 943.13(4), Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, including at subsection (7):

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

16. Rule 11B-27.0011(4), Florida Administrative Code, defines good moral character. The Rule states in pertinent part:

    
    

    1. For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain good moral character, as required by Subsection 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, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections 117.03, . . . 812.014(1)(d) [read 812.014(2)(d)][.]

       3. The perpetration by the officer of an

       act or conduct which causes substantial doubts concerning the officer's honesty, fairness,

       or respect for the rights of others or for

       the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime[.]

       Section 943.1395 requires:

       
       

    2. The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10) . . .

    3. Upon a finding of 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 in lieu of revocation of certifica- tion:

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

       2. 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.

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

       4. Issuance of a reprimand.

          
          

          The Criminal Justice Standards and Training Commission has also adopted a rule on the subject of discipline for the failure to maintain good moral character. Rule 11B-27.005, Florida Administrative Code, provides:

          
          

          1. The Commission sets forth below a range of disciplinary guidelines from which disci- plinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Subsection 943.13(7), Florida Statutes. The purpose of

             the disciplinary guidelines is to give notice to certified officers of the range of penalties

             which will be imposed upon particular violations of Subsection 943.13(7), Florida Statutes, except as provided in Subsections (4), herein.

             The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of Subsection 943.13(7), Florida Statutes, will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension

             of revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.

          2. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), Florida Statutes, it shall issue a final order imposing penalties within

             the ranges recommended in the following discipli- nary guidelines:

             1. For the perpetration by the officer of an act which would constitute any felony

                offense, as described in Rule 11B-27.0011(4)(a), but where there was not a violation of Sub- section 943.13(4), Florida Statutes, the usual action of the Commission shall be to impose a penalty ranging from suspension to revocation.

             2. For the perpetration by the officer of an act which would constitute any of the mis- demeanor offenses as described in Rule 11B- 27.0011(4)(b), but where there was not a violation of Subsection 943.13(4), Florida Statutes, the action of the Commission shall be to impose a penalty ranging from probation to revocation.

             3. For the perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, as described in Rule 11B-27.001(4)(c), if such act or conduct does not constitute a crime, as described in Rule 11B-27.0011(4)(c), if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b) above, the action of the commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation.

             4. For the unlawful use by the officer of any of the controlled substances enumerated in Rule 11B-27.00225, as described in Rule

                11B-27.0011(4)(d), the action of the commission shall be to impose a penalty ranging from sus- pension to revocation.

          3. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of mitigating circumstances by evidence presented to the Commission 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 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 recommendations of character or employ- ment 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 conditions of any Commission-ordered probation;

          4. The Commission may impose one or more of the following penalties, listed in increasing order of severity:

             1. The issuance of a reprimand.

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

             3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions of probation may include, but are not limited to: periodic reports from the officer, supervisor or counselor; indirect or direct supervision by Division staff or a Commission-approved supervisor; furnishing urine drug tests; personal appearance(s) before the Commission; participation in psychological, occupational or substance

                abuse counseling; successful completion of training or retraining as specified in Subsection (5)(b) above; maintaining employ- ment; refraining from violations of Subsection 943.13(1 )-(10); the payment of restitution for

                damages or loss created by the officer's mis- conduct; or any other terms or conditions as appropriate.

             4. Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.

             5. Revocation of certification.

17. Respondents are charged with violating Section 943.13, Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, by virtue of their failure to maintain the qualification of good moral character as required in Section 943.13(7), Florida Statutes and Rule 11B-27.0011(4). The lack of "good moral character" alleged by Petitioner stems from its allegation that Winkle did:

    
    

    "unlawfully, . . ., use excessive force on Marcus Kitchens, an inmate, by beating the said Marcus Kitchens with his fists and striking Marcus Kitchens' head against a concrete floor, although at the time Marcus Kitchens was not resisting and was submissive to efforts to subdue him."

    and that Hancock did:

    "unlawfully aid, abet, counsel or procure Floyd Winkle to actually an intentionally touch or strike Marcus Kitchens, against the will of the said victim."

    
    

18. Petitioner has the burden to prove by clear and convincing evidence that the Respondents violated Chapter 943 and is subject to discipline for that violation. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Walker v. State, 322 So.2d 612 (Fla. 3d DCA !975); Reid v. Florida Real Estate Commission,

188 So.2d 846 (Fla. 2d DCA 1966). In this case, Petitioner has not carried its burden of demonstrating that either Hancock or Winkle failed to maintain a "good moral character" as required by Section 943.13(7), Florida Statutes. See, Bachynsky v. State, Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (Fla. 1st DCA 1985); McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887 (Fla. 5th DCA 1984); Florida Board of Bar Examiners re: G.W.L., 364 So.2d 454 (Fla. 1978), Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977). The evidence did not demonstrate that either Respondent committed the acts alleged to demonstrate his lack of character, i.e., excessive use of force or aiding and abetting the use of such force. Likewise, the evidence failed to demonstrate that either Respondent lacked good moral character. Thus, it must be concluded that no violation of Section 943.13(7), Florida Statutes, has occurred, and the Administrative Complaints should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

That the amended Administrative Complaints filed against David E. Hancock and Floyd W. Winkle be dismissed.

DONE and ORDERED this 13th day of January, 1992, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992.

ENDNOTES

1/ Although not chrged in the Administrative Complaint, it was raised at the hearing that Respondents demonstrated a lack of moral character when they did not accurately report the altercation in the incident report required when force is used on an inmate. As with the main charges of the Administrative Complaint, the evidence was insufficient to establish that Respondents misrepresented the facts of the case in the report or during the investigation afterwards.

COPIES FURNISHED:

Joseph S. White, Esquire Post Office Box 1489 Tallahassee, FL 32302

Richard Ogburn, Esquire Post Office Box 923 Panama City, FL 32402

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, FL 32302

James T. Moore Commissioner

Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 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 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.

Docket for Case No: 90-001876

Orders for Case No: 90-001876