vs. ) CASE NO. 92-3336
ANTHONY G. BENJAMIN, )
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 14, 1993, in West Palm Beach, Florida.
Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
For Respondent: Mark K. Koenig, Esquire
The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
On November 26, 1991, Petitioner issued an Administrative Complaint against Respondent, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. Thereafter, this cause was transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.
Petitioner presented the testimony of Keith R. Golden. The Respondent Anthony G. Benjamin testified on his own behalf and presented the testimony of Paul King and Katrina Johnson. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence.
Only Petitioner submitted post-hearing proposed findings of fact in the form of a proposed recommended order. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
Respondent Anthony G. Benjamin was certified by Petitioner on May 25, 1990, and was issued certificate number 44-90-502-02. At the time of the incident which is the subject of this proceeding, Respondent was a certified correctional officer employed by Glades Correctional Institution.
On July 1, 1990, Officer Amadeo Bianchi and Officer Keith Golden were working as patrol officers with the South Bay Police Department in Palm Beach County. They received a call regarding a prowler at 188 Harrell Drive. They responded to that call in a marked police car, and both officers were wearing their police uniforms.
Officers Bianchi and Golden arrived at approximately 3:52 a.m. and saw Respondent outside the apartment at that address. Both officers knew Respondent. They also knew that he lived in the apartment at that address and that he was employed as a correctional officer at Glades Correctional Institution.
The officers proceeded to the door of the apartment and knocked. Keisha Benjamin, Respondent's wife, opened the door. Respondent walked through the open door past the police officers and his wife, heading straight for the bedroom door located to the right of the door where the police officers were standing.
As Respondent proceeded toward the bedroom door, his wife was still standing at the apartment door with the police officers, explaining that she did not want Respondent there, that they had been having problems, and that he had moved out approximately a week earlier.
Officer Golden watched Respondent reach the bedroom door, discover that the closed door was locked, and then kick the door open. After Respondent entered the bedroom, Officer Golden could hear the sounds of people fighting. Both police officers headed toward the bedroom door.
When the two officers reached the bedroom door, they could see Respondent and another man fighting on top of the bed. The two officers entered the bedroom, each grabbing one of the fighting men from behind in order to break up the fight. Officer Bianchi grabbed Respondent. It was later determined that the individual Officer Golden grabbed was a man named Paul King, Respondent's wife's former boyfriend.
Officer Golden pulled Paul King away from the fight and out into the living room area of the apartment. Golden instructed him to calm down, to stay there, and to not move. King cooperated with Officer Golden and did as he was instructed.
As Officer Golden turned to walk toward the bedroom, he saw Officer Bianchi and Respondent coming out of the bedroom. They were still struggling, and Officer Bianchi was attempting to restrain Respondent from behind. At this point, Respondent and King were no more than 10-15 feet apart.
Officer Bianchi turned Respondent, who could then see King on the other side of the living room area. Respondent was still enraged at King.
Respondent, with Officer Bianchi trying to restrain him from behind, started toward Officer Golden, which was in the same direction as where Paul King was located. At the same time, Officer Golden started going toward Respondent.
As Officer Golden met Respondent and Officer Bianchi half way across the room, Officer Golden bent forward to reach down and sweep Respondent's legs out from under him. As Officer Golden bent forward, Respondent struck him in the right eye with his closed fist, causing a small gash no more than 1/2" long under Golden's eye, which required no stitches.
Officer Golden stood up, shook his head, bent forward again, and struck Respondent on the back of his legs causing Respondent to lose his balance. Respondent kept struggling with the two police officers until they handcuffed him. Officer Golden handcuffed Respondent by placing Respondent's hands behind his back. Once Officer Golden handcuffed Respondent, Officer Bianchi told Golden that Golden was bleeding and then punched Respondent in the face several times for injuring Officer Golden.
Respondent was then placed under arrest. Court documents admitted in evidence indicate that Respondent was charged with battery on a police officer (Count 1) and resisting arrest with violence (Count 2). On February 21, 1991, he was found guilty of Count 1 although adjudication was withheld, was found not guilty of Count 2, and was placed on probation for 18 months.
On July 17, 1991, an Order was entered as a result of a Motion for Clarification of Sentence filed by Respondent. That Order provides that the record regarding Respondent's criminal charges was amended to reflect that Respondent was guilty of battery, that adjudication was withheld, and that he was placed on probation for a period of one year.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
The Administrative Complaint filed in this cause alleges that Respondent has violated the provisions of Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(a), (b), and (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a correctional officer in the state of Florida have good moral character. Since the Administrative Complaint was issued on November 26, 1991, the 1992 statutory amendments referred to in Petitioner's proposed recommended order which were not alleged in the Administrative Complaint will not be discussed in this Recommended Order.
Section 943.13, Florida Statutes, sets forth the minimum qualifications for employment for a correctional officer and provides in subsection (7) that such person have a good moral character. Section 943.1395(5), Florida Statutes, provides for revocation of the certification of an officer who is not in compliance with the provisions of certain statutory sections. However, Section 943.1395(6), Florida Statutes, provides for
penalties other than revocation when failure to maintain good moral character is the specific violation, as follows:
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:
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
In compliance with that statutory requirement, the Commission has adopted such a definition by rule, establishing such as a statewide standard. As charged in the Administrative Complaint filed in this cause, Rule 11B- 27.0011, Florida Administrative Code, provides, in pertinent part, as follows:
For the purposes of the Commission's implementation of any of the penalties enumerated in subsection 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by subsection 943.13(7), F.S., is defined as:
The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or
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 . . .
F.S., or
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 . . . .
In the case at bar, Officer Golden testified that Respondent was arrested for aggravated battery on a police officer, battery on a police officer, battery, and resisting arrest with violence. Respondent testified that
he was found guilty of misdemeanor battery. Neither party offered in evidence a copy of the criminal indictment or information, which would be the best evidence of that with which Respondent was charged and which would reflect if Respondent were charged with one of the statutory sections enumerated in Rule 11B- 27.0011(4)(b), Florida Administrative Code. Instead, Petitioner offered a form which appears to have been prepared by a clerk at the circuit court in Palm Beach County and which indicates that Respondent was found guilty of battery on a police officer with adjudication withheld, together with a subsequent Order signed by a Circuit Court Judge in Palm Beach County correcting Respondent's record to reflect that Respondent was found guilty of battery with adjudication withheld. Rather than offer proof as to its allegation that Respondent has failed to maintain good moral character because he has violated subsection (a) or because he has violated subsection (b) of Rule 11B-27.0011(4), Florida Administrative Code, Petitioner has submitted a proposed recommended order which alleges on page 13 that Respondent committed either a misdemeanor or a felony and that Respondent either violated subsection (a) or violated subsection (b).
Petitioner's own uncertainty as to what violation Respondent has committed falls far short of the level of proof required to prove that Respondent has committed a violation of a statewide standard sufficient to warrant disciplinary action against Respondent's correctional officer certification.
As to Petitioner's allegation that Respondent resisted arrest with violence, such allegation is simply not supported by the evidence. The evidence indicates that the police officers watched Respondent enter his own apartment and then kick open a bedroom door. They then heard the sounds of people fighting and immediately entered the bedroom to break up the fight. Officer Golden grabbed Paul King from behind and pulled him out of the bedroom, across the living room area, and placed him on the opposite side of the living room area from the bedroom where Respondent remained with Officer Bianchi. Officer Golden then turned toward the bedroom door at the same time that Officer Bianchi and Respondent were exiting the bedroom with Officer Bianchi attempting to restrain Respondent from behind. Respondent saw Paul King and started toward him at the same time that Officer Golden started toward Respondent. As they met, Officer Golden bent forward to grab Respondent's legs and Respondent struck him in the eye. As a result, Officer Golden suffered a gash below his eye no more than 1/2 inch long and no stitches were required to close that cut.
Although Officer Golden testified that he placed Respondent under arrest before Respondent hit him in the eye, that testimony is not logical and is not, therefore, credible. Officer Golden was not even in the same room with Respondent except during the few seconds when they were moving toward each other from a distance of no more than 10 feet apart. If Officer Golden had placed Respondent under arrest during that intervening several seconds, it is unknown for what conduct he would have arrested Respondent. It is more believable that Respondent was arrested after he hit Officer Golden, after he was wrestled to the floor by Officers Golden and Bianchi, and at approximately the time that Officer Bianchi began punching Respondent in the face because Respondent had hit Officer Golden.
Petitioner has proven, however, that Respondent violated Rule 11B- 27.0011(4)(c), Florida Administrative Code. Officer Golden explained in his testimony that what was really happening on the night in question was that Respondent had come home to find his wife sleeping with another man. Officer Golden testified that it was reasonable for a man to be excited, angered, and enraged to come home and find another man in his bed. It was not reasonable, however, for Respondent to start fighting with Paul King, to refuse to stop fighting when the police officers attempted to break up the fight, and to
continue to struggle with the police officers who were engaged in the lawful performance of their duties. Respondent's conduct on that night causes substantial doubts concerning his respect for the rights of others and for the laws of the state of Florida. Respondent's lack of control, minimally, exhibits bad judgment. Venting anger by engaging in violence is not consistent with good moral character. Respondent's conduct that night was not acceptable conduct for a certified correctional officer.
There is no indication in this record that Respondent would engage in that same conduct again. It is appropriate that Respondent be disciplined for the behavior in which he engaged that evening; it is not appropriate that he be disciplined harshly. In its proposed recommended order, Petitioner points out that battery, as defined by Section 784.03, Florida Statutes, constitutes a misdemeanor. Rule 11B-27.005 establishes a range of penalties from probation to revocation for the commission of an act which would constitute a misdemeanor. That Rule further sets forth a range of penalties from the issuance of a reprimand up to revocation for conduct by a correctional officer 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.
Respondent's inappropriate conduct did not relate to the performance of his official duties and Respondent did not use his official authority to facilitate the misconduct. Respondent realized no pecuniary benefit from his misconduct, and there is no showing that Respondent presents any danger to the public. A temporary suspension of Respondent's certification is sufficient disciplinary action under the circumstances of this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent's
certification as a correctional officer for a period of 60 days.
DONE and ENTERED this 22nd day of March, 1993, at Tallahassee, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1993.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-3336
Dawn Pompey Whitehurst Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Mark K. Koenig, Esquire Suite 300 Pavilion
James T. Moore, Commissioner Criminal Justice Standards
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.
