STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. )
)
NICHOLAS R. WUKOSON, )
)
Respondent. )
Case No. 06-1282PL
)
RECOMMENDED ORDER
A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on November 8, 2006, in Tampa, Florida.
APPEARANCES
For Petitioner: Joseph S. White, Esquire
Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
For Respondent: T. Patton Youngblood, Jr., Esquire
106 South Tampania Avenue, No. 100 Tampa, Florida 33609
STATEMENT OF THE ISSUE
The issue is whether Respondent violated Sections 943.13(7), 943.1395(6) and (7), Florida Statutes (2003),1 and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
Through an Administrative Complaint dated September 13, 2005, the Criminal Justice Standards and Training Commission (Commission) alleged that Respondent violated Sections 943.13(7), 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) when he abused and sexually molested a child, C.P., in June 2004. Respondent denied the allegations in the Administrative Complaint and requested a hearing through an Election Rights form dated January 13, 2006. The Commission referred this matter to the Division of Administrative Hearings (DOAH) on April 13, 2006, for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent.
The final hearing was initially scheduled for June 1, 2006, but it was twice continued at the request of the Commission.
The hearing was held on November 8, 2006.
At the final hearing, the Commission presented the testimony of Tamika Harris, Terrance Thomas, Jennifer Miller, Kathleen Kunde, Sgt. Jonathan Gamson, Detective Sonja McCaughey, Detective Josephine Baxter, Corin Hill-Parker, and Steven Parker. The Commission also presented the deposition testimony of Lauren Frazier, Sherry Frazier, and Michael Frazier. The Commission’s Exhibits P-A1, P-A2, P-B1, P-B2, P-B3, P-C1, P-C2,
through P-K, P-L1, P-L2, P-M1, and P-M2 were received into evidence.
Respondent testified in his own behalf at the final hearing and also presented the testimony of Leah Bryant. Respondent's Exhibits R-1 through R-3 were received into evidence.
The two-volume Transcript of the final hearing was filed on November 30, 2006. The parties were initially given 10 days from that date to file proposed recommended orders (PROs), but the deadline was extended to December 26, 2006, and then January 3, 2007, upon Respondent’s unopposed motions.
The Commission filed its PRO on December 11, 2006, and Respondent filed his PRO January 3, 2007. The PROs have been given due consideration in preparing this Recommended Order.
FINDINGS OF FACT
Respondent was certified by the Commission in October 2002. His certification number is 204780.
Respondent worked as a patrol officer for the Cape Coral Police Department from October 2002 through
September 2003.
Respondent was not working as a law enforcement officer at the time of the incident giving rise to this proceeding. He was working in a sales job.
Respondent is a large, muscular man. He is approximately six-feet, four inches tall and between 240 and 245 pounds. He was 33 years old at the time of the final hearing.
In June 2004, Respondent was living in Tampa with his then fiancée, Leah Bryant. Ms. Bryant’s four-year-old daughter, C.P., was living with them as well. Ms. Bryant was approximately three months pregnant with Respondent’s child at the time.
On Saturday, June 12, 2004, Ms. Bryant went to work early in the morning and left C.P. at home with Respondent.
C.P. was asleep when Ms. Bryant left.
Around noon that day, Respondent was to drop off C.P. with Ms. Bryant’s parents, Michael and Sherry Frazier, in Bradenton, which is approximately half-way between Tampa and the Fraziers’ home in Ft. Myers Beach. C.P. was going to spend several days with the Fraziers. C.P.'s father, who also lived in the Ft. Myers area, was going to pick up C.P. from the Fraziers and keep her for a week with him.
After Ms. Bryant left for work, Respondent got up, showered and got dressed. Then, he woke C.P. up, made her breakfast, packed her a bag of clothes for the trip, and ran her a bath.
Respondent was sitting on the edge of the tub with his feet in the water while he bathed C.P. He was fully clothed, except for his socks.
As Respondent was trying to get C.P. to rinse her hair with a cup of water, she shook the cup at Respondent causing the water to splash out of the cup and soak his shirt. This angered Respondent, and he pulled C.P. over his knee and “gave her a swat” on her buttocks.
Respondent only spanked C.P. one time with an open hand. He testified that he did not think that he spanked her that hard, but the force of the spank was significant enough to leave red marks and bruises that, as discussed below, were clearly visible that night.
C.P. cried after the spanking, but according to Respondent, she quickly stopped crying and started laughing after he started making “goofy noises.” Respondent then finished bathing C.P. without further incident.
Respondent got C.P. out of the bath and helped her get dressed. Respondent then put C.P. into his car and they drove to Bradenton to meet the Fraziers.
Respondent and the Fraziers met briefly at a McDonalds in Bradenton. C.P. left with the Fraziers and Respondent drove back to Tampa.
After picking up C.P., the Fraziers drove back to their home in Ft. Myers Beach. On the way, they drove by a number of houses that were for sale in the Venice area because the Fraziers were considering moving to that area, which was closer to Tampa where Ms. Bryant, Respondent, and C.P. were living.
The Fraziers did not get back to their home in Ft.
Myers Beach until 6:30 or 7:00 p.m., which means that C.P. was in a car seat for approximately eight hours, including the time that she was in Respondent’s car from Tampa to Bradenton. The length of time that C.P. was in the car seat may have exacerbated the red marks on C.P.'s buttocks that were left by the spanking administered by Respondent.
Shortly after getting to the Fraziers’ house, C.P. was in the bathroom with Lauren, her 13-year-old aunt and
Ms. Bryant’s half-sister. Lauren noticed that C.P.’s buttocks had a number of red marks and bruises. Lauren immediately told her mother, Mrs. Frazier.
Mrs. Frazier asked C.P. what had happened, and C.P. told her that “Nicky [Respondent] spanked me.” C.P. did not mention any sexual contact by Respondent.
Mrs. Frazier immediately tried to call Ms. Bryant, but was unable to get in touch with her until approximately
10:00 p.m. that night.
Mrs. Frazier took photographs of the marks on C.P.’s buttocks at approximately 8:00 p.m. The photographs, Exhibit P- D, are not very good quality, but they do show reddish marks all across C.P.’s buttocks. The photographs also show vertical marks along the inside of the cheeks of the buttocks, which look more like a rash than bruises.
Mrs. Frazier told Ms. Bryant about the marks on C.P.’s buttocks and told her that she needed to come see them for herself. Ms. Bryant did so.
Ms. Bryant arrived in Ft. Myers Beach after 1:00 a.m. on Sunday, June 13, 2004. C.P. was sleeping, but Ms. Bryant woke her up to see the marks on her buttocks and ask her what had happened.
C.P. told Ms. Bryant the same story that she told Mrs. Frazier, i.e., that Respondent spanked her. C.P. did not mention any sexual contact by Respondent.
Ms. Bryant testified that she spoke again with C.P. about the incident later on Sunday, and that all C.P. told her was that Respondent spanked her.
Ms. Bryant further testified that when she left the Fraziers for Tampa on Monday, June 14, 2004, C.P. had not said anything about sexual contact by Respondent to her or anyone else. Mr. and Mrs. Frazier and Lauren all testified in their depositions that on Sunday afternoon, while Ms. Bryant was still
at the Fraziers’ home, C.P. alleged that Respondent put "his pee-pee in her butt.”
Ms. Bryant’s testimony on this issue is accepted over that of the Fraziers. Indeed, the more persuasive evidence establishes that Ms. Bryant would not have left C.P. and returned to Tampa on Monday had she known of the allegations of sexual abuse. Ms. Bryant's testimony on this issue is consistent with the level of concern that she exhibited for C.P. when she drove from Tampa to Ft. Myers Beach late on Saturday night after learning of the marks on C.P.’s buttocks.
Ms. Bryant testified that she first learned of the allegations of sexual abuse when she received a call from Mrs. Frazier on Thursday, June 17, 2004.
On that same day, C.P. was picked up from the Fraziers by her father, Steven Parker. C.P. told Mr. Parker the same story that she told the Fraziers, that Respondent spanked her and "put his pee-pee in her butt.”
Later that evening, Mr. Parker’s then-fiancée (and current wife), Corin Hill-Parker, talked to C.P. about the incident. Mrs. Parker testified that at her request, C.P. drew a picture that depicted Respondent’s penis touching her butt. That drawing was received into evidence as Exhibit P-E.
Ms. Bryant testified that she did not believe that
C.P. drew the picture attributed to her by Mrs. Parker. Ms.
Bryant’s testimony is corroborated by a comparison of Exhibit P- E to the other drawings done by C.P. (e.g., Exhibit R-3), which, in the undersigned’s view, show far less drawing skill than would be required to draw a penis and butt at the small scale they were drawn in Exhibit P-E.
The following day, Friday, June 18, 2004, Mr. Parker and Mrs. Frazier took C.P. to the Estero Island Medical Center to be examined by a doctor. At this point, it had been six days since the incident.
The report prepared by the doctor who examined C.P. on that date reflects that there were fading bruises on C.P.’s buttocks, but no injuries to her anus or vagina. The report states that C.P. told the doctor that “Nicky spanked [her]” and that “Nicky put his pee-pee in [her] bottom.”
The doctor called the Lee County Sheriff’s Office (LCSO), as he was required to do by state law in cases of alleged child abuse. LCSO dispatched deputy to the doctor’s office. The deputy advised Mr. Parker that LCSO did not have jurisdiction because the alleged incident occurred in Hillsborough County. The deputy told Mr. Parker that he should take C.P. to a hospital in Tampa that evening -- Friday,
June 18, 2004 -- for evaluation.
Mr. Parker did not take C.P to Tampa until Monday, June 21, 2004. He did not take C.P. to a hospital for
evaluation, but rather took her to the Tampa Police Department (TPD) to file a report. The report was taken by Sgt. Jonathan Gamson.
Mr. Parker gave Sgt. Gamson the photographs of C.P.’s injuries taken by Mrs. Frazier, as well as the picture that C.P. allegedly drew of Respondent’s penis and her butt. Mr. Parker told C.P. to tell Sgt. Gamson what Respondent did to her, and she told him that Respondent spanked her and "put his pee-pee in her butt.” Sgt. Gamson also took a sworn statement from Mrs. Frazier, who had accompanied Mr. Parker and C.P. to Tampa.
Sgt. Gamson turned the case over to TPD’s sex crime division, namely Detectives Josaphine Baxter and Sonja McCaughey.
Detective Baxter referred C.P. to the Hillsborough County Child Protection Team for a physical evaluation. She also referred C.P. to the Children’s Justice Center for a “forensic interview.”
The physical examination was conducted by nurse Tamika Harris on Thursday, June 24, 2004. C.P. told Ms. Harris that Respondent “put his pee-pee in her butt.”
Ms. Harris did not observe any evidence of the alleged sexual abuse, such as injury to C.P.’s anus or vagina. On this point, Ms. Harris’ report states that “the physical findings
from today’s examination neither supports nor refutes allegations of child sexual abuse.”
The “forensic interview,” which also occurred on June 24, 2004, was conducted by Jennifer Miller.
Ms. Miller has extensive training and experience in interviewing children, including children that are victims of abuse. The interview was videotaped and was conducted by
Ms. Miller according to a protocol designed to ensure the reliability of the child’s statements For example, the protocol included asking open-ended, non-leading questions. Respondent did not take issue with the methodology used by Ms. Miller.
During the interview C.P. told Ms. Miller that Respondent “put his pee-pee in her butt” while they were both naked in the bath together. She also told Ms. Miller that Respondent spanked her while she was in the bath. C.P. described the spanking and the alleged sexual abuse in the same manner, i.e., “like a stinky fish.”
As detailed in the Order on Motion to Admit Statement of Child Victim entered on this date, C.P.’s videotaped statements are not found to be sufficiently reliable to satisfy the requirements of Section 90.803(23), Florida Statutes (2006). The statements are, therefore, hearsay.
Detective Baxter had Respondent arrested on the evening of June 24, 2004, for child abuse and sexual abuse notwithstanding Ms. Harris’ report that her physical examination of C.P. did not support the allegation of sexual abuse. Her decision to have Respondent arrested was based upon C.P.’s statements to Sgt. Gamson, Ms. Harris, and Ms. Miller about the alleged abuse, Mrs. Frazier’s sworn statement, the drawing allegedly made by C.P., and the photographs taken by Mrs. Frazier on the night of the incident showing marks on C.P.’s buttocks.
Respondent waived his Miranda rights and consented to be interviewed by Detective Baxter on two occasions. During the interviews, Respondent admitted that he spanked C.P. in the bath, but denied that he “put his pee-pee in her butt” or otherwise sexually molested her. He denied that he was naked while he was bathing C.P. The story that he gave during the interviews was consistent with his testimony at the final hearing.
At one point between the interviews, Respondent stated to Detective McCaughey, “oh, it happened alright,” or words to that effect, in response to her statement that he should step up and take responsibility for his actions if he did what C.P. had alleged. Respondent credibly testified at the final hearing that he did not recall making that statement, and that even if
he did, the statement must have been taken out of context because he would not admit to something he did not do.
Respondent’s testimony on this point is consistent with his repeated denials during the interviews with Detective Baxter.
Respondent was not prosecuted for the crimes for which he was arrested. He was never charged with sexual battery, and the child abuse charge was “nol prossed.”
Respondent and Ms. Bryant are no longer together.
They split up shortly after the incident, and she recently married someone else.
Ms. Bryant now lives in Delray Beach. She has primary custody of C.P. and her and Respondent’s son, J.W., who was born in November 2004.
After this incident, the Parkers filed several abuse reports against Respondent and Ms. Bryant relating to C.P. The reports were investigated by the Department of Children and Family Services and found to be without merit.
There is a custody dispute pending between Mr. Parker and Ms. Bryant in which Mr. Parking is seeking custody of C.P. as a result of the incident giving rise to this case. That action, which was initiated after the incident, has not been actively pursued by Mr. Parker. Neither he nor Ms. Bryant was sure of the status of the case.
Respondent sees his son regularly, and he has a good relationship with Ms. Bryant. Respondent has had no contact whatsoever with C.P. since the incident.
Ms. Bryant testified that C.P. rarely mentions the incident. Mrs. Frazier and Mr. Parker testified that C.P. has stated that she is afraid of Respondent and that she remembers that he hurt her, which is consistent with the parties’ stipulation that C.P.’s participation at the final hearing may cause her severe emotional or mental harm.
CONCLUSIONS OF LAW
Jurisdiction and Burden of Proof
DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (2006).
The Commission has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The clear and convincing evidence standard 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 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.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994).
Commission’s Disciplinary Authority, Generally
Section 943.13, Florida Statutes, provides minimum qualifications for employment or appointment as a law enforcement officer or correctional officer. The qualifications include “good moral character as determined by a background investigation under procedures established by the commission.” See § 943.13(7), Fla. Stat.
Section 943.1395(6), Florida Statutes, provides that the Commission “shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in [several enumerated statutes].” Section 943.13(4), Florida Statutes, requires that the officer “[n]ot have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States.”
The Commission has no basis to discipline Respondent under Section 943.1395(6), Florida Statutes. He not been convicted of a felony or a misdemeanor involving perjury or false statement; he has not received a dishonorable discharge
from the armed forces; and he has not intentionally executed a false affidavit.
Section 943.1395(7), Florida Statutes, authorizes the Commission to take disciplinary action against a certified officer if it finds that the officer “has not maintained good moral character . . . as required by s. 943.13(7) ”
The Commission has defined “good moral character” in Florida Administrative Code Rule 11B-27.0011. Therefore, it is not necessary or appropriate to resort to the broader judicial definitions of that phrase cited in the Commission’s PRO. See, e.g., Dept. of Law Enforcement, Criminal Justice Standards & Training Comm’n v. Barleston, Case No. 05-4548PL, at 9 (DOAH May 2, 2006; CJSTC July 14, 2006).
As it relates to this case, the rule provides that “a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as [t]he
perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.” Fla.
Admin. Code R. 11B-27.0011(4)(a).
A certified officer who fails to maintain good moral character under Florida Administrative Code Rule 11B- 27.0011(4)(a) is subject to discipline ranging from “suspension of certification to revocation.” See Fla. Admin. Code R. 11B- 27.005(5)(a).
Offenses Charged in the Administrative Complaint
The felony offenses allegedly perpetrated by Respondent are sexual battery of a child and child abuse.
Alleged Sexual Battery (Administrative Complaint, ¶ 2(a))
Section 794.011(1)(h), Florida Statutes, defines “sexual battery” to mean “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal vaginal penetration of another by any other object ”
Section 794.011(2)(a), Florida Statutes, provides that a sexual battery committed by a person 18 years of age or older on a person less than 12 years of age is a capital felony.
The evidence clearly and convincingly establishes that, at the time of the incident, Respondent was older than 18 years of age and that C.P. was less than 12 years of age.
The evidence does not, however, clearly and convincingly establish that Respondent committed a sexual battery on C.P. There was no physical evidence of the alleged sexual battery and the only evidence supporting the allegations are C.P.’s statements, all of which are hearsay. See Order on Motion to Admit Statement of Child Victim, entered on this date.
C.P.’s hearsay statements are admissible in this proceeding, but only to corroborate or explain other admissible evidence. Id.; §§ 120.569(2)(g), 120.57(1)(c), Fla. Stat. The
only other non-hearsay evidence that her statements might arguably corroborate or explain was the picture that C.P. purportedly drew depicting Respondent’s penis and her butt, but the undersigned was not persuaded that C.P. actually drew that picture.
Even if C.P.’s videotaped statements met the hearsay exception in Section 90.803(23), Florida Statutes (2006), and could then be corroborated or explained by C.P.’s other hearsay statements about the incident to Lauren, the Fraziers, etc., the undersigned could not say without hesitancy that Respondent committed the acts alleged by C.P. There are too many circumstances that call into question the reliability of the allegations, such as C.P.’s failure to complain about her butt hurting at any point on the day of the incident; her failure to mention the alleged sexual contact when Lauren first saw the bruises; the fact that, according to Ms. Bryant, the allegations of sexual abuse did not surface until some point after she left Fort Myers Beach; the substantial likelihood that C.P. did not draw the picture that depicted Respondent’s penis and her butt as Mrs. Parker testified that she did; and the absence of any physical evidence of sexual abuse, as would be expected if a six-foot, four-inch, 240-pound man put his penis in a four year old’s anus, vagina and/or buttocks.
Alleged Child Abuse (Administrative Complaint, ¶ 2(b))
“Child abuse” is defined to include the “[i]ntentional infliction of physical or mental injury on a child” or “[a]n intentional act that could reasonably be expected to result in physical or mental injury to a child.” § 827.03(1)(a)-(b), Fla. Stat.
A person who knowingly and willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a third degree felony. § 827.03(1), Fla. Stat.
The evidence clearly and convincingly establishes that Respondent spanked C.P. and that red marks and bruises were left on her buttocks as a result of the spanking. The parties disagree, however, whether the spanking rises to the level of felony child abuse under Section 827.03(1), Florida Statutes.
In Raford v. State, 828 So. 2d 1012 (Fla. 2002), the court held that parents are not immune from prosecution for child abuse when administering corporal punishment, but the court also held that a parent has the right to discipline his or her child through “reasonable” or “non-excessive” corporal punishment. In reaching its decision, the court recognized the “difficulty in delineating a precise line between permissible
corporal punishment and prohibited child abuse.” Id. at 1020- 21.
The court in Raford approved the decision in State v.
McDonald, 785 So. 2d 640 (Fla. 2d DCA 2001), which construed the extent of the parental right to administer corporal punishment in light of the statutory scheme prohibiting child abuse. The court concluded in McDonald that:
if a parent can be charged with the misdemeanor offense under section 827.04 when a spanking results in significant welts, the legislature intended more serious beatings that do not result in permanent disability or permanent disfigurement to be treated as simple [third-degree felony] child abuse under section 827.03(1). This reserves aggravated [first-degree felony] child abuse [under section 827.03(2)] to cases involving parental discipline that results in great bodily harm or permanent disabilities and disfigurements or that demonstrates actual malice on the part of the parent and not merely a momentary anger or frustration.
Id. at 646.
The holding in McDonald was recently followed in King v. State, 903 So. 2d 954 (Fla. 2d DCA 2005), in which the court held that:
spankings that result in "significant bruises or welts" do not rise to the level of felony child abuse, which requires "more serious beatings that do not result in permanent disability or permanent disfigurement." Instead, this type of corporal punishment may constitute contributing to the dependency of a child,
which is a first-degree misdemeanor under section 827.04, Florida Statutes.
Id. at 955 (citations omitted).
The court in King certified to the Florida Supreme Court the question as to whether “a spanking administered as corporal punishment that results in significant bruises or welts may constitute felony child abuse under Section 827.03(1), Florida Statutes.” Id. The court denied review and, therefore, did not answer the certified question. State v. King, 908 So. 2d 1058 (Fla. 2005)(table).
Nevertheless, it appears from the cases cited above that the current state of the law in Florida is that felony child abuse is reserved for “serious beatings” and that spankings resulting in bruises or welts do not rise to the level of felony child abuse unless there is evidence of malicious intent. The cases cited by the Commission in its PRO for the proposition that corporal punishment resulting in bruises or welts rises to the level of felony child abuse appear to involve serious beatings rather than routine spankings. See, e.g., Brown v. State, 802 So. 2d 434 (Fla. 4th DCA 2001) (child struck with belt at least three times, leaving welts and “whipping marks”); Raford v. State, 792 So. 2d 476 (Fla. 4th DCA 2001) (child struck with belt three times, leaving welts that were visible the following day); State v. McDonald, 785 So. 2d 640
(Fla. 2d DCA 2001) (spanking resulting in bruising that required medical attention); Corsen v. State, 784 So. 2d 535 (Fla. 5th DCA 2001) (child struck with belt at least 15 times).
Respondent is not C.P.’s parent, but on the date of the incident he was standing in loco parentis for C.P. Therefore, under the cases cited above, Respondent had the right to right to administer “reasonable” and “nonexcessive” corporal punishment to C.P.
The evidence establishes that the spanking Respondent administered to C.P. was intended to be corporal punishment for
C.P. throwing a cup of water on Respondent while he was attempting to bathe her; that red marks and bruises (but no welts) were left across C.P.’s butt from the spanking that were visible for many hours after the incident; that the bruises on C.P.’s butt had faded significantly (but not completely) more than a week after the incident; that the spanking resulted from Respondent’s momentary anger or frustration, not from any malicious intent to injure C.P.; that C.P. did not require immediate medical attention because of the injuries to her butt; and that C.P. did not complain about any lingering pain from the spanking even though she sitting in a car seat for as long as eight hours after the incident. Accordingly, as a matter of fact and law, the spanking does not rise to the level of felony child abuse under Section 827.03(1), Florida Statutes.
Summary
The Commission failed to prove by the requisite standard of proof that Respondent sexually battered C.P. in violation of Section 794.011(2)(a), Florida Statutes, and because the spanking administered by Respondent does not rise to the level of felony child abuse under Section 827.03(1), Florida Statutes, the Commission has no basis to discipline Respondent for failing to maintain good moral character under Florida Administrative Code Rule 11B-27.0011(4)(a) as alleged in the Administrative Complaint.
The spanking administered by Respondent was, at most, a violation of Section 827.04, Florida Statutes, which is a misdemeanor offense. See King, 903 So. 2d at 955.
A certified officer who violates Section 827.04, Florida Statues, whether the offense is criminally prosecuted or not, has failed to maintain good moral character under Florida Administrative Code Rule 11B-27.0011(4)(b)1., and is subject to discipline ranging from “probation of certification to suspension of certification.” See Fla. Admin. Code R. 11B- 27.005(5)(b).
Respondent is not subject to discipline in this proceeding for failing to maintain good moral character under Florida Administrative Code Rule 11B-27.0011(4)(b) because he was not charged in the Administrative Complaint with a violation
of that rule or Section 827.04, Florida Statutes. See, e.g., Trevisani v. Dept. of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005) (licensee may not be disciplined for an offense not charged in the administrative complaint).
In sum, the Commission has no basis to discipline Respondent for failing to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and it is therefore unnecessary to determine the appropriate penalty or consider the aggravating or mitigating circumstances that may exist. See Fla. Admin. Code R. 11B-27.005(6)-(7).
Based upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint against Respondent.
DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida.
S
T. KENT WETHERELL, II 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 22nd of January, 2007.
ENDNOTE
1/ All statutory references are to the 2003 version of the Florida Statutes in effect at the time of the incident that is the subject of the Administrative Complaint, unless otherwise noted.
COPIES FURNISHED:
Michael Crews, Program Director Division of Criminal Justice
Professionalism Services
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
Michael Ramage, General Counsel Division of Criminal Justice
Professionalism Services
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
Joseph S. White, Esquire
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
T. Patton Youngblood, Jr., Esquire
106 South Tampania Avenue, No. 100 Tampa, Florida 33609
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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 05, 2007 | Agency Final Order | |
| Jan. 22, 2007 | Recommended Order | Petitioner failed to prove that Respondent sexually abused a child, and the spanking that he gave the child did not rise to the level of felony child abuse. Recommend dismissal of the Administrative Complaint. |
DEPARTMENT OF CHILDREN AND FAMILY SERVICES vs CLAY MERRITT AND DIANA MERRITT, 06-001282PL (2006)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs DIANA CASTELLA, 06-001282PL (2006)
LARRY TOWNSAN | L. T. vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 06-001282PL (2006)
EDUCATION PRACTICES COMMISSION vs. BARRY L. HOSTETLER, 06-001282PL (2006)
