STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) TRAINING COMMISSION, )

)

Petitioner, )

) CASE NO. 92-1395

vs. )

)

HENRY A. FAIRCLOTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Crestview, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on September 9, 1992. The Division of Administrative Hearings received the hearing transcript on September 24, 1992, and the record closed on October 19, 1992, with the filing of the transcript of the deposition of Frederick Terrell Kirkland.

Faircloth's proposed order was filed on November 19, 1992, and petitioner's proposed findings of fact and conclusions of law were filed on November 30, 1992. The attached appendix addresses the parties' proposed findings of fact by number.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Roy M. Kinsey, Jr., Esquire

Kinsey, Troxel, Johnson & Walborsky

438 East Government Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated April 9, 1991, petitioner alleged that respondent, to whom the Criminal Justice Standards and Training Commission had "issued Certificate Number S-83-599-01 . . . [o]n or about May 25, 1988, . . . did . . . unlawfully while employed as a correctional officer, touch or strike or use excessive force against Samuel Collier, an inmate at Holmes Correctional Institution . . . striking the inmate in the face, while his hands were handcuffed behind his back"; and, on the same day, "did . . . make false

statements and/or instruct other correctional officers under his command to make false statements as to the incident involving inmate Samuel Collier"; and so "did violate the provisions of Section 943.1395(5), (6), Florida Statutes and Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code, in that respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character."

When respondent requested formal administrative proceedings, the matter was referred to the Division of Administrative Hearings in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), where it was subsequently consolidated for hearing with Criminal Justice Standards and Training Commission v. James F. Watson, No. 92-1396 and Criminal Justice Standards and Training Commission v.

Charles W. Pumphrey, No. 92-1397.

FINDINGS OF FACT

1. Respondent Henry A. Faircloth holds certificates as a correctional officer, No. 05-83-599-01, and as a law enforcement officer, No. 16-89-222-03, both issued by petitioner Criminal Justice Standards and Training Commission; and has held them at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of major.

   
   

2. On May 25, 1988, he was in a meeting about ongoing construction at the prison, when Glenda Parmer told him he was needed in his office, elsewhere in the same building. She had seen James T. Watson and Charles W. Pumphrey, correctional officers who worked as sergeants at Holmes Correctional Institution, escorting Samuel Collier, an unruly and, as it turned out, intoxicated inmate toward the security complex.

   
   

3. After Ms. Parmer, a correctional officer who worked as an administrative lieutenant, recounted events to Major Faircloth and told him "that we had some problems," (T.224) she accompanied him on the walk back toward his office. Before they reached the hall onto which Major Faircloth's office opened, they encountered the obstreperous inmate, his hands in handcuffs behind him, (T.234) a sergeant on either side.

   
   

4. Although she came within three or four feet of the inmate, Ms. Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face, either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541.

   
   

5. Major Faircloth, both sergeants and the inmate started down the hall and Ms. Parmer "stepped out of the way so they could go down the hallway."

   T.220. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector William T. Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Respondent Faircloth entered his office and closed the door. T.43.

   
   

6. Messrs. Collier, Watson and Pumphrey had preceded him through the door into the office. From outside the office, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were

   audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235.

   
   

7. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mailroom officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238.

   
   

8. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mailroom and flexed his right hand. When the mailroom officer inquired about his swollen knuckles, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland.

   
   

9. When assistant superintendent Kirkland arrived, he spoke to respondent Faircloth, then accompanied him as he went back into the office where the inmate and sergeants Pumphrey and Watson remained. At some point Lieutenant Benny Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in.

   
   

10. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed his view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51.

    
    

11. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153.

    
    

12. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution.

    
    

13. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that

    laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs.

    
    

14. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice" (T.113), or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188.

    
    

15. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x- rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley.

    
    

16. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59.

    
    

17. The next day, Major Faircloth filed a written report, Petitioner's Exhibit No. 9, reciting that Sergeants Watson and Pumphrey and Lieutenant Chesnut had used force against Samuel Collier, but omitting any mention of the force he himself had used. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, he falsely denied under oath that he had hit Samuel Collier and injured his own hand. Petitioner's Exhibit No. 6. Inspector McLain had authority to administer the oath in the course of his official duties, and did so to respondent before interrogating him on June 28, 1988, and on July 6, 1988. On July 6, 1988, respondent again answered questions under oath and falsely answered affirmatively when asked whether he had been truthful during the earlier interrogation.

    
    

    CONCLUSIONS OF LAW

    
    

18. Because the Criminal Justice Standards and Training Commission referred respondent's hearing request to the Division of Administrative Hearings, the "division has jurisdiction over the formal proceeding". Section 120.57(1)(b)3., Florida Statutes (1992 Supp.).

    
    

19. License revocation proceedings have been said to be "'penal' in nature". State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and

    convincingly. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See Addington

    v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966).

    
    

20. Here petitioner is proceeding under statutory provisions that include what was codified in the spring of 1988 as Section 943.1395(5), Florida Statutes, (1987) which authorized the

    
    

    Commission . . . [to] revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10).

    
    

    Among the subsections referenced by Section 943.1395(5), Florida Statutes (1987), is Subsection 943.13(4), Florida Statutes (1987), now codified as subsection seven, requiring that correctional officers "[h]ave a good moral character as determined by a background investigation under procedures established by the Commission."

    
    

21. Effective July 1, 1988, Chapter 88-51 s.5, Laws of Florida (1988), what was originally codified as Section 943.1395(6), Florida Statutes (1988 Supp.), provided:

    
    

    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 in lieu of revocation of certification:

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

    2. Placement on a probationary status for a period not to exceed two 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.

       
       

       Effective April 8, 1992, the foregoing subsection was renumbered and amended to list revocation as a possible sanction for failure to maintain good moral character. Chapter 92-131, s.5, Laws of Florida (1992). At the same time, subsection five of Section 943.1395 was renumbered and amended to delete authority for revocation of a certificate solely on grounds of not maintaining good moral character. Id. Finally, a new subsection eight was added requiring, inter alia, that "prescribed penalties must be based upon the severity of specific offenses." Id.

22. Statutes stating new grounds for revocation should not be given retroactive effect, Middlebrook v. Department of State, 5655.2d727 (Fla. 1st DCA 1990); Hector v. Department of Professional Regulation, 504 So.2d 469 (Fla. 1st DCA 1987); Norman Curtis Lewis v. Criminal Justice Standards Commission, 462 So.2d 528 (Fla. 1st DCA 1985); Nechtman v. Saker, 271 So.2d 26 (Fla. 3d DCA 1972), but the substantial restatement of an old ground in a new statute authorizes disciplinary action on the preexisting ground under the new statute. Drury v. Harding, 461 So.2d 104, 108 (Fla. 1984); Solloway v. Department of Professional Regulation, 421 So.2d 573 (3d DCA 1982) rev. den. 430 So.2d 452 (Fla. 1983). At all pertinent times, failure to maintain good moral character as defined by Rule 11B-27.0011(4), Florida Administrative Code, has been grounds for disciplinary action.

    
    

23. In the spring of 1988, the CJSTC's Rule 11B-27.0011(4), Florida Administrative Code, which establishes "a statewide standard," provided, in pertinent part:

    
    

    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 . . . 784.03, . . . 837.012, 944.35(3),

       944.35(7)(a) or

    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 784.03, Florida Statutes, proscribes battery. Section 837.012 makes it a misdemeanor knowingly to make a false statement in regard to any material matter while under oath, even if not in an official proceeding. Section 117.10 authorizes law enforcement and correctional officers to administer oaths as notaries public when engaged in the performance of their official duties, as Inspector McLain was, when he interrogated respondent.

       
       

24. Subsections 944.35(4) and (5) require Department of Corrections employees who use force on an inmate or who witness inmate abuse to report what they have done or witnessed in writing. Subsection (7)(a) provides criminal penalties if an officer submits such a report which is knowingly or willfully inaccurate, incomplete or untruthful. Section 944.35(1), which establishes the circumstances under which correctional officers may lawfully use physical force on an inmate, provides:

    1. An employee of the department is authorized to apply physical force to the person of an inmate only when and to the extent that it reasonably appears necessary:

       1. To defend himself or another against such other imminent use of unlawful force;

       2. To prevent the escape from a state correctional institution of a person whom the officer reasonably believes to be lawfully detained in such institution;

       3. To prevent damage to property;

       4. To quell a disturbance;

       5. To overcome physical resistance to a lawful command.

    
    

    Striking an inmate in the face when his hands are handcuffed behind him is not necessary in order to quell a disturbance he is causing, and did not reasonably appear necessary to respondent. Section 944.35(3) establishes a criminal penalty for employees of the Department of Corrections who, with malice aforethought, commit battery on an inmate.

    
    

25. Rule 11B-27.005, Florida Administrative Code, which sets out disciplinary guidelines, was originally adopted before May of 1988, but has been amended since. Rule 11B-27.005, Florida Administrative Code, now provides:

    
    

    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:

       . . .

       (b) For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses as described in

       11B-27.0011(4)(b), F.A.C., but where there was not a violation of section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation to revocation. Specific violations and penalties that will be imposed, absent aggravating or mitigating circumstances include the following:

       . . .

       Violation Penalty

       . . .

       2. Battery (784.03, F.S.) Suspension

       . . .

       4. False Reports,

       Statements Falsification

       of Application Revocation

       . . .

    2. 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 recommendations 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' 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;

    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 recommendations of employing agency administrator.

    
    

    Respondent Faircloth's conduct violated Rule 11B-27.0011(4)(b) Florida Administrative Code, since his acts constituted an unlawful battery on Samuel Collier, as defined by Sections 784.03 and 943.35(3), as alleged in paragraph 2(a) of the administrative complaint.

    
    

26. As alleged in paragraph 2(b) of the administrative complaint, respondent's false statements also violated Rule 11B-27.0011(4)(b), Florida

    Administrative Code. The evidence clearly and convincingly established that Mr. Faircloth gave incomplete and misleading information in the use of force report he submitted. He did not state, as Section 944.35(4) required him to, that he struck Samuel Collier. This was no inadvertent omission. Respondent Faircloth later specifically denied, under oath, to Inspector McLain, that he struck Samuel Collier. This sworn falsehood violated Section 837.012.

    
    

27. The respondent's conduct also ran afoul of Rule 11B-27.0011(4)(c), Florida Administrative Code. Clear and convincing evidence showed that respondent unlawfully struck Samuel Collier, deliberately filed a false and incomplete report, and lied under oath. His beating of a handcuffed inmate and his prevarications under oath concerning the incident reasonably give rise to substantial doubts about Mr. Faircloth's honesty and his respect for the rights of others.

    
    

28. Section 943.1395(7), Florida Statutes (1992 Supp.), authorizes penalties short of revocation for misconduct evincing bad moral character. See Short v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 589 So.2d 364 (Fla. 1st DCA 1991). In its current form, Rule 11B-27.005, Florida Administrative Code, specifies revocation as the penalty for false reports and statements (absent mitigating circumstances), but the pertinent language was adopted after May 25, 1988, and does not, therefore, govern. See Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990). The lesser penalties authorized by Section 943.1395(7), Florida Statutes (1992 Supp.), are available in an appropriate case, to the extent contemplated by Rule 11B-27.005, Florida Administrative Code, as it read before its amendment on March 29, 1989.

    
    

29. Without invoking Rule 11B-27.005, Florida Administrative Code, petitioner's counsel argues that revocation is the appropriate penalty in the present case. Petitioner's proposed recommended order contends, at page 14:

    
    

    The position of correctional officer is one of significant public trust. Correctional officers are charged with the care, custody, and control of persons who have been incarcerated for the protection of society. Section 943.10(2), Florida Statutes.

    Additionally, the Respondent Faircloth by virtue of his rank, had the added responsibility of the supervision of guidance of other officers.

    
    

    A fundamental expectation of officers such as the Respondent is that they will observe law abiding conduct and treat inmates in a humane manner. The importance of fulfilling this expectation is enhanced where the officer, as did the Respondent, acts as a role model for younger, less experienced officers. In this the Respondent Faircloth has failed. The injuries inflicted on Inmate Collier reflect a callous cruelty which is wholly unacceptable for an officer.

    
    

    In addition to the Respondent Faircloth's physical abuse of Inmate Collier, his efforts

    to encourage others to keep the misdeed secret by instructing them to repeat a story of a hand injury from yard work raises further doubts about his honesty.

    
    

    The appropriate penalty to be imposed upon Respondent Faircloth is revocation of certification. His misconduct suggests that he is unwilling to exercise self-restraint when provoked but rather prefers to indulge himself in violence to satisfy his anger.

    Administering a beating to a prisoner whose hands are securely fastened together behind his back suggests an alarming defect of conscience and a lack of compassion. Beyond this, the Respondent was neither remorseful nor willing to admit the wrongful nature of his actions. To the contrary, Respondent chose to deny any wrongdoing. Accordingly, any penalty which would permit the Respondent the opportunity to repeat his misconduct as a correctional or law enforcement officer should be rejected as inappropriate.

    
    

    On the assumption that Rule 11B-27.005, Florida Administrative Code, as it existed in May of 1988, controls, but that respondent is entitled to the benefit of any mitigating factors the current rule creates (although immune to any detriment on account of aggravating circumstances created by the rule, see Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990)) petitioner's argument is persuasive.

    
    

30. "Resort to brute force . . . [unnecessarily], its unjustified use against a person for whose welfare respondent was responsible, and the untruthfulness about these important matters indicate the type of bad moral character that should disqualify would-be correctional officers." Criminal Justice Standards and Training Commission v. Aubrey Minor, No. 89-6409 (DOAH; June 1, 1990). Accord, Criminal Justice Standards and Training Commission v. David L. Sanders, DOAH Case No. 89-2770; and Criminal Justice Standards and Training Commission v. Jose Galvin, DOAH Case No. 88-2724. Respondent's efforts to enlist others over whom he had authority in a cover-up also evince bad moral character. On the assumption (rejected here) that Rule 11B-27.005, Florida Administrative Code, should apply in its current form, application of the current rule would also require revocation of respondent's certificates.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner revoke respondent's certificates both as a correctional officer and as a law enforcement officer.

DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1993.

APPENDIX TO RECOMMENDED ORDER 92-1395

Petitioner's proposed findings of fact Nos. 1, 4-15, 17, 18, 20, 21, 22, 24-30 and 32-47 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 2, 3 and 31 are immaterial as to respondent Faircloth.

With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time.

With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office.

With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times respondent hit Collier. Sergeant Sheppard saw respondent slap Collier only once. But the evidence clearly and convincingly showed that respondent landed additional blow(s), causing his knuckles to swell.

Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 11, 12, 14, 15, 22 and 23 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 5, it was not clear that a fence was up and that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence.

With respect to respondent's proposed findings of fact Nos. 6 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex.

With respect to respondent's proposed finding of fact No. 10, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor.

With respect to respondent's proposed finding of fact No. 13, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited.

With respect to respondent's proposed findings of fact Nos. 16 and 17, the nurse's findings were not "totally inconsistent." She apparently did not examine the inmate's teeth. Some of the swelling she anticipated evidently occurred.

With respect to respondent's proposed finding of fact No. 18, Sheppard's testimony has been credited.

With respect to respondent's proposed finding of fact No. 19, when Sheppard saw Faircloth slap Collier he might have been looking through the clear glass window.

With respect to respondent's proposed finding of fact No. 20, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI.

Respondent's proposed finding of fact No. 24 is rejected as contrary to the weight of the evidence.

COPIES FURNISHED TO:

Joseph S. White, Esquire Gina Cassidy, Esquire

Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Roy M. Kinsey, Jr., Esquire

Kinsey, Troxel, Johnson & Walborsky

438 East Government Street Pensacola, Florida 32501

James T. Moore, Commissioner Department of Law Enforcement

P. O. Box 1489 Tallahassee, Florida 32302

A. Leon Lowry, II, Director Criminal Justice Standards

Training Commission

P. O. Box 1489

Tallahassee, Florida 32302

Michael Ramage General Counsel

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-001395

Orders for Case No: 92-001395