STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

ERIKA R. BARTLEY, )

)

Respondent. )

Case No. 03-2239PL

)

CORRECTED1 RECOMMENDED ORDER

A formal hearing was conducted in this case on August 15, 2003, in Apalachicola, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurie B. Binder, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

For Respondent: Erika R. Bartley, pro se

215 Martin Luther King Avenue Apalachicola, Florida 32320

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2001), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about December 7, 2001, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner), issued an Administrative Complaint against

Erika R. Bartley (Respondent). The complaint alleged that Respondent provided alcohol to two minor females and subsequently made a false official statement in violation of Sections 827.04(1)(a) and 837.06, Florida Statutes (2001), respectively, such that Respondent failed to maintain good moral character as required by Section 943.13(7), Florida Statutes (2001). According to the complaint, Respondent is subject to discipline pursuant to Sections 943.1395(6) and 943.13(7), Florida Statutes (2001).

Respondent filed a request for a formal administrative hearing on January 7, 2003. Petitioner referred Respondent's request to the Division of Administrative Hearings on June 16, 2003.

An Initial Order was issued on June 17, 2003. Petitioner filed a Unilateral Response to Initial Order on June 27, 2003.

Administrative Law Judge Charles C. Adams issued a Notice of Hearing on July 9, 2003. The notice scheduled the hearing for August 15, 2003. Subsequently, the Division of Administrative Hearings transferred the case to the undersigned.

During the hearing, Petitioner presented the testimony of six witnesses. Petitioner offered seven exhibits that were accepted into evidence.

Respondent testified on her own behalf. She did not offer any exhibits for admission into evidence.

A Transcript of the hearing was filed on September 2, 2003.

The parties had an opportunity to file proposed recommended orders on or before September 12, 2003. Petitioner filed an untimely Proposed Recommended Order on September 17, 2003. As of the date that this Recommended Order was issued, Respondent has not filed proposed findings of fact and conclusions of law.

All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was employed as a certified correctional officer at the Franklin County jail in Apalachicola, Florida. She held the rank of sergeant.

2. On the evening of May 19, 2001, Respondent was not on duty. Instead, she was driving her vehicle around Apalachicola, Florida.

3. Patricia Carroll was a passenger in Respondent's vehicle. Ms. Carroll was employed as the Finance Director for the Franklin County Sheriff's Office.

4. At approximately 7:45 p.m., two females in another vehicle stopped in the street to talk to Respondent. The driver of the second vehicle, H.B., was 16 years old. The passenger in the second vehicle, C.B., was 18 years old.

5. H.B. and C.B. asked Respondent if she would purchase some alcohol for them. Respondent agreed to make the purchase, telling H.B. and C.B. to meet her at the grocery store.

6. Respondent and H.B. drove their vehicles to a grocery store parking lot. Respondent asked H.B. and C.B. if they wanted a six-pack of beer. Responding affirmatively, H.B. and

   C.B. asked Respondent to buy them a six-pack of Zima. H.B. and

   
   

   C.B. gave Respondent money to buy the alcohol.

   
   

7. Respondent went into the grocery store and purchased a six-pack of Zima. She exited the store and gave the alcohol to

   H.B. and C.B. through passenger window of H.B.'s vehicle. The two vehicles then left the parking lot.

8. Casey Nash, an employee at the Franklin County Courthouse, was sitting in a vehicle in the grocery store parking lot when Respondent and H.B. arrived there. Ms. Nash saw Respondent give the alcohol to H.B. and C.B. Ms. Nash knew

   H.B. was a minor. Subsequently that evening, Ms. Nash reported her observations to a deputy sheriff.

9. On May 21, 2001, H.B. and C.B. gave sworn written statements regarding the incident to an investigator for the

   Franklin County Sheriff's Office. In the statements, H.B. and

   
   

   C.B. stated that Respondent had purchased beer from them.

   
   

10. On May 29, 2001, Respondent gave a sworn written statement to an investigator for the Franklin County Sheriff's Office. Respondent's statement indicated that she purchased an alcoholic beverage for Ms. Carroll at the grocery store on the evening of May 19, 2001. She did not reveal her purchase of alcohol for H.B. and C.B.

11. Respondent was charged in a criminal case with contributing to the delinquency of a minor. She subsequently pled nolo contendere to a lesser included charge of aiding and abetting possession of alcohol by an underaged person. On June 7, 2001, the judge accepted Respondent's plea, withheld adjudication of guilt, and ordered Respondent to pay a $195 fine.

12. On June 20, 2001, Respondent made a second sworn statement to an investigator for the Franklin County Sheriff's Office. In the second sworn statement, Petitioner admitted that she had purchased the alcohol for H.B. and C.B. on May 19, 2001, and that she had avoided revealing all the facts in her May 29, 2001, sworn statement. According to the second sworn statement, Respondent did not tell the whole truth because she "was confused and scared about what had happened."

13. As a result of her actions, Respondent's employer demoted her, taking away the rank of sergeant and placing her on probation for six months. Respondent's employment at the Franklin County jail subsequently was terminated for reasons unrelated to this case.

14. The record does not reveal how long Respondent has been a certified correctional officer. There is no evidence that Respondent has a prior disciplinary history.

15. Respondent currently is working as a painter. It was apparent at the hearing that Petitioner is remorseful for her

    misconduct.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 943.1395(8)(d).

17. Respondent has the burden of proving, by clear and convincing evidence, the allegations set forth in the Administrative Complaint. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. Section 943.13, Florida Statutes (2001), which sets forth the minimum qualifications for employment as a correctional officer, states as follows in pertinent part:

    1. ny person employed as a . . . correctional officer . . . shall:

       
       

       * * *

       
       

       (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

       
       

19. Section 943.1395(7), Florida Statutes (2001), authorizes Petitioner to discipline certified correctional officers that do not maintain good moral character.

20. Rule 11B-27.0011(4)(b), Florida Administrative Code, defines the "failure to maintain good moral character" as

    follows:

    
    

    (b) The perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:

    
    

    1. Sections . . . 827.04 . . . 837.06 . . .

    
    

21. Section 827.04(1)(a), Florida Statutes (2001), prohibits, "any act which causes, tends to cause, encourages, or contributes to a child becoming a delinquent or dependent child or a child in need of services . . . ." Such an act is a first- degree misdemeanor.

22. Section 837.06, Florida Statutes (2001), states as follows:

    837.06 False official statements.--Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official

    duty shall be guilty of a misdemeanor of the second degree . . . .

    
    

23. Respondent admits that she violated Sections 827.04 and 837.06, Florida Statutes (2001). Accordingly, she is subject to discipline for failing to maintain good moral character.

24. Rule 11B-27.005(5)(b)4., Florida Administrative Code, which sets forth the disciplinary guidelines applicable here, states as follows in pertinent part:

    (b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 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 of certification to suspension of certification. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:

    
    

    * * *

    
    

    4. False reports and statements . . .

    837.06 Revocation

    
    

25. Rule 11B-27.005(6), Florida Administrative Code, sets forth the applicable aggravating and mitigating circumstances. The aggravating circumstances in this case are that Respondent is guilty of two violations and she made a misleading sworn statement, exacerbating the seriousness of her initial misconduct. The only mitigating circumstances are that

Respondent is remorseful and was disciplined by her employer. On balance, there is no basis to deviate from the mandated penalty of revocation for Respondent's violation of Section 837.06, Florida Statutes (2001), without regard for her violation of Section 827.04, Florida Statutes (2001).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order revoking Respondent's certification as a correctional officer.

DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2003.

COPIES FURNISHED:

Erika R. Bartley

215 Martin Luther King Avenue Apalachicola, Florida 32320

Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice

Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302

Rod Caswell, Program Director Department of Law Enforcement Division of Criminal Justice

Professionalism Services 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.

1 This Corrected Recommended Order is being issued to correct copies furnished only.

Docket for Case No: 03-002239PL

Orders for Case No: 03-002239PL