STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 07-0667PL

)

FATIMAH N. HOLIDAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on April 20, 2007, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 For Respondent: Fatimah N. Holiday, pro se

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 15, 2006, Petitioner issued an Administrative Complaint against Respondent alleging the following facts:

1. Respondent was certified by the Criminal Justice Standards and Training Commission on February 18, 2003, and was issued Correctional Certificate Number 229286.

   
   

2. On or about November 17, 2005, the Respondent, Fatimah N. Holiday, did unlawfully make a false statement,

which . . . she did not believe to be true, under oath administered by Arlethia Clark in an official proceeding, to wit: internal investigation, case # 05-41777, in regard to a material matter.

On or between August 10, 2005, and November 17, 2005, the Respondent, Fatimah

N. Holiday, did unlawfully solicit, accept, or agree to accept a pecuniary or other benefit, to wit: agreeing to accept a discount from an inmate for a vehicle purchase.

According to the Administrative Complaint, "the actions of the Respondent did violate the provisions of Section 837.02(1) and/or 838.016(2) or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes, and/or Rule 11B- 27.0011(4)(a), 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." Respondent "dispute[d] the allegations of fact contained in the Administrative Complaint" and requested a "formal hearing pursuant to Section 120.57(1), Florida Statutes, before an administrative law judge appointed by the Division of Administrative Hearings." In her hearing request, Respondent indicated:

Those material facts which I dispute are:

(a) I never tried to purchase a car from the named [i]nmate.[1]

The matter was referred to DOAH on February 9, 2007.

On April 13, 2007, Petitioner, on behalf of both parties, filed a Pre-Hearing Stipulation, which contained the following "[s]tipulated [f]acts":

1. The Respondent was certified by the Petitioner as alleged in paragraph 1 of the Administrative Complaint.

   
   

2. At all times relevant to the allegations of the Administrative Complaint, the Respondent was employed as a correctional officer with the Florida Department of Corrections, South Florida Reception Center.

   
   

3. At all times relevant to the allegations of the Administrative Complaint, Inmate Ricardo Bigio was incarcerated at the Florida Department of Corrections, South Florida Reception Center.

4. On November 17, 2005, the Respondent gave a sworn statement to Inspector Arlethia Clark as part of an internal investigation conducted by the Florida Department of Corrections.

As noted above, the final hearing in this case was held and completed on April 20, 2007. Five witnesses testified at the hearing: Ricardo Bigio, Sergeant Shirley McLain, Inspector Arlethia Clark, Lieutenant Gregory Gibbs, and Respondent. In addition to the testimony of these five witnesses, five exhibits (Petitioner's Exhibits 1 and 2, and Respondent's Exhibits 2 through 4) were offered and received into evidence.

At the close of the taking of evidence, the undersigned announced on the record that the deadline for filing proposed recommended orders would be 10 days from the date of the filing with DOAH of the hearing transcript.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on June 25, 2007.

Petitioner and Respondent filed their post-hearing submittals on July 2, 2007, and May 9, 2007, respectively. In its post-hearing submittal, Petitioner announced that it was withdrawing the allegation made in the Administrative Complaint that Respondent had violated Section 943.1395(6), Florida Statutes, and that it was, instead, "rely[ing] solely on the allegation that the misconduct described in paragraph 2 of the Administrative Complaint violate[d] Section 943.1395(7), Florida

Statutes, and Rule 11B-27.0011(4)(a) Florida Administrative Code, and that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which requires that officers in the State of Florida have good moral character."

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, including the "[s]tipulated [f]acts" contained in the parties' Prehearing Stipulation,2 the following findings of fact are made:

1. Respondent is now, and has been since February 18, 2003, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 229286.

2. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the South Florida Reception Center (SFRC), a "transient institution for inmates that are [transferring] from one facility to another."

3. Sergeant Shirley McLain is now, and was at all times material to the instant case, employed by the Department as a correctional officer and assigned to SFRC.

4. Respondent and Sergeant McLain have known each other since the time they attended the correctional academy together.

5. In August of 2005, Respondent was responsible for supervising inmates working on the "outside grounds" of SFRC, while Sergeant McLain oversaw the operations of the SFRC property room, where personal items taken from inmates are brought and stored until they are returned or other otherwise disposed of.

6. Sergeant McLain "never supervised" Respondent.

   
   

7. In August of 2005, Ricardo Bigio was an inmate at SFRC.

   
   

8. Shortly after his arrival at the facility, he had a watch and chain confiscated from him. He was permitted to send these items home.

9. Two days later, Sergeant McLain found Inmate Bigio in possession of another watch and another chain. Upon being told by Inmate Bigio, in response to her questioning, that he had obtained these items "through visitation," Sergeant McLain informed him, since these items were brought into the institution "illegally," they were "now contraband" and he could not have them "sen[t] . . . home."

10. At the suggestion of a fellow inmate, Inmate Bigio approached Respondent and asked her to "speak to Sergeant McLain to see if she would let [him] send [this confiscated] jewelry home."

11. During their conversation, Respondent mentioned to Inmate Bigio that "her dad needed a car."

12. Inmate Bigio told Respondent that, if Respondent spoke to Sergeant McLain about his jewelry, he "would be able to send her to somebody [he knew in the used car sales business] to get a good deal on a car" for her father.

13. Respondent agreed to help Inmate Bigio by speaking to Sergeant McLain about sending his jewelry home.

14. Respondent and Inmate Bigio then went to Sergeant McLain's office, where Respondent asked Sergeant McLain if she would "let[] [Inmate Bigio] send this chain and this watch home," an act that that Respondent believed was within Sergeant McLain's power as the officer in charge of the SFRC property room.

15. Sergeant McLain responded to Respondent's request in the negative. Respondent said, "Okay," and then left with Inmate Bigio.

16. Respondent returned to Sergeant McLain's office with Inmate Bigio "off and on" for the next three or four days to repeat her request that Sergeant McLain allow Inmate Bigio to send his jewelry home. On each occasion, in response to the request, Sergeant McLain reiterated that the jewelry "was contraband and [therefore Inmate Bigio] could not send it home."

17. On August 10, 2005, approximately a week after she had first raised the matter with Sergeant McLain, Respondent once

    again asked Sergeant McLain to permit Inmate Bigio to send his jewelry home.

18. This time, in making her request, Respondent revealed her motivation for interceding on Inmate Bigio's behalf. She explained to Sergeant McLain that, if Sergeant McLain granted the request and allowed Inmate Bigio to send his jewelry home, Inmate Bigio would make the necessary arrangements with his "people [who] own[ed] a car lot" to enable Respondent to purchase for her father a $5,000.00 car for only $2,000.00. Respondent provided this explanation as to why she was taking up Inmate Bigio's cause in the hopes that Sergeant McLain's having this information would make Sergeant McLain more inclined to grant the permission Respondent was requesting on Inmate Bigio's behalf.

19. Sergeant McLain was taken aback that Respondent would strike such a deal with an inmate. She advised Respondent, as she had in response to Respondent's previous requests, that Inmate Bigio would not be permitted to send his jewelry home.3

20. Sergeant McLain subsequently reported the incident to the SFRC assistant warden.

21. Inspector Arlethia Clark with the Department's Inspector's General Office subsequently investigated the matter.

22. As part of her investigation, Inspector Clark interviewed Respondent on November 17, 2005. Respondent was

    placed under oath for the interview. Respondent told Inspector Clark that Sergeant McLain, in describing her August 10, 2005, conversation with Respondent, had "twisted the story around." Respondent knowingly made the false claim that she had gone to Sergeant McLain merely to report the illicit offer that Inmate Bigio had made and to seek guidance from Sergeant McLain "as a supervisor" as to what to do, not to persuade Sergeant McLain to allow Inmate Bigio to send his jewelry home so that she would be able to purchase a car for her father at a discount (which, in fact, contrary to Respondent's sworn statement to Inspector Clark, was the actual reason she had gone to Sergeant McLain).

23. Inspector Clark also interviewed Inmate Bigio and Sergeant McLain.

24. Based on the findings of her investigation, Inspector Clark "found that there was bartering between, or an attempt to barter between," Inmate Bigio and Respondent.

    CONCLUSIONS OF LAW

    
    

25. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

26. At all times material to the instant case, Section 943.13(7), Florida Statutes, has provided that any person employed or appointed as a law enforcement or correctional officer in the State of Florida shall "[h]ave a good moral

    character as determined by a background investigation under procedures established by [Petitioner]."

27. At all times material to the instant case, Section 943.1395(7), Florida Statutes, has authorized Petitioner to revoke the certification of a law enforcement or correctional officer who has failed to maintain "good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by Section 943.13(7)," Florida Statutes, or, alternatively, to impose specified, lesser penalties on the certificate holder, to wit: "[s]uspension of certification for a period not to exceed 2 years"; "[p]lacement on a probationary status for a period not to exceed 2 years"; "[s]uccessful completion . . . of any basic recruit, advanced, or career development training or such retraining deemed appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."

28. Such action may be taken only if the certificate holder's lack of "good moral character" is established by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern

    and Company, 670 So. 2d 932, 935 (Fla. 1996); Dieguez v. Department of Law Enforcement, Criminal Justice Standards and

    Training Commission, 947 So. 2d 591, 595-596 (Fla. 3d DCA 2007); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); and § 120.57(1)(j), Fla. Stat.

    ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").

29. Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . .

    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 in 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), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

30. In determining whether the Department has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of lack of

    "good moral character" made in the charging instrument. Due process prohibits an agency from taking penal action against a certificate holder based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc.

    v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Lusskin v. Agency for Health Care

    Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill

    
    

    v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

31. "'Moral character' . . . [is] not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence." Zemour, Inc. v. State Division of

    Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement or correctional officer demonstrates a lack of "good moral character" when he or she engages in "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation."

    Florida Board of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978).

32. Petitioner, which has the ultimate authority to administratively interpret the provisions of Sections 943.13(7) and 943.1395, Florida Statutes, has defined in Florida Administrative Code Rule 11B-27.0011(4) what constitutes, "[f]or the purposes of [Petitioner's] implementation of any of the penalties specified in Section 943.1395, [Florida Statutes], a certified officer's failure to maintain [the] good moral character required by Section 943.13(7), [Florida Statutes]."

33. At all times material to the instant case, Florida Administrative Code Rule 11B-27.0011(4)(a) has provided that such a "failure to maintain good moral character" includes, among other things:

    The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.

    
    

34. Section 837.02, Florida Statutes, describes the felony crime of "[p]erjury in official proceedings." At all times material to the instant case, Subsection (1) of the statute has provided as follows:

    Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s.

    775.082, s. 775.083, or s. 775.084.

35. An internal affairs investigation such as the one conducted by Inspector Clark in the instant case is an "official proceeding," as that term is used in Section 837.02(1), Florida Statutes. See Melendres v. State, 739 So. 2d 1237, 1238 (Fla. 3d DCA 1999)("We disagree with Melendres's contention that his sworn statement given during a police internal affairs investigation was not given during an 'official proceeding." Certainly, the procedures set in place for police internal affairs investigations, and the protections afforded therein to the officer under investigation, are adequate to be considered as "official proceedings' under the perjury statute.").

36. Section 838.016 describes the felony crime of "[u]nlawful compensation or reward for official behavior." At all times material to the instant case, Subsections (2) and (3) of the statute has provided as follows:

    1. It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law for the past, present, or future exertion of any influence upon or with any other public servant regarding any act or omission which the person believes to have been, or which is represented to him or her as having been, either within the official discretion of the other public servant, in violation of a public duty, or in performance of a public duty.

       
       

    2. Prosecution under this section shall not require that the exercise of influence

       or official discretion, or violation of a public duty or performance of a public duty, for which a pecuniary or other benefit was given, offered, promised, requested, or solicited was accomplished or was within the influence, official discretion, or public duty of the public servant whose action or omission was sought to be rewarded or compensated.

       
       

37. In the instant case, Petitioner is seeking to take disciplinary action against Respondent on the ground that she has failed to maintain "good moral character" in that:

    On or about November 17, 2005, [she] did unlawfully made a false statement,

    which . . . she did not believe to be true, under oath administered by Arlethia Clark in an official proceeding, to wit: internal investigation, case # 05-41777, in regard to a material matter [hereinafter referred to as "Allegation One"].

    
    

    On or between August 10, 2005, and November 17, 2005, the Respondent, Fatimah N. Holiday, did unlawfully solicit, accept, or agree to accept a pecuniary or other benefit, to wit: agreeing to accept a discount from an inmate for a vehicle purchase [hereinafter referred to as "Allegation Two"].

    
    

38. With respect to Allegation One, Petitioner established by clear and convincing evidence that Respondent engaged in the perjurious conduct alleged by Petitioner and thereby violated Section 837.02(1), Florida Statutes, a violation which constitutes a "failure to maintain good moral character" and warrants the imposition of an appropriate penalty.

39. With respect to Allegation Two, Petitioner proved by

    clear and convincing evidence that Respondent corruptly agreed to accept Inmate Bigio's offer to assist her in purchasing a vehicle for her father at a discount in exchange for her attempting to influence Sergeant McLain to violate Department policy in performing her duties relating to confiscated contraband by asking Sergeant McLain to allow the jewelry she had taken from Inmate Bigio to be sent home to his family. In engaging in this conduct, Respondent violated Section 838.016(2), Florida Statutes. This violation, like her violation of Section 837.02(1), Florida Statutes, constitutes a "failure to maintain good moral character" and warrants the imposition of an appropriate penalty.

40. In determining what disciplinary action Petitioner should take against Respondent for her "fail[ing] to maintain good moral character" by engaging in the conduct described in Allegations One and Two of the Administrative Complaint, it is necessary to consult Petitioner's "disciplinary guidelines" in Florida Administrative Code Rule 11B-27.005, which impose restrictions and limitations on the exercise of its disciplinary authority. See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231, 1233-34 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties.").

41. Florida Administrative Code Rule 11B-27.005 provides, in pertinent part, as follows:

    * * *

    
    

    (4)(a) The Commission sets forth in paragraphs (5)(a)-(d) of this rule section, a range of disciplinary guidelines from which disciplinary penalties shall be imposed upon certified officers who have been found by the Commission to have violated Section 943.13(7), F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties or prescribed penalties that shall be imposed for particular violations of Section 943.13(7), F.S., absent aggravating or mitigating circumstances, as provided in subsection (6) of this rule section. The disciplinary guidelines are based upon a "single count violation" of each provision listed. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), that may be included in the final penalty at the Commission's discretion.

    
    

    * * *

    
    

    1. When the Commission finds that a certified officer has committed an act that violates Section 943.13(7), F.S., the Commission shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       
       

       1. For the perpetration by the officer of an act that would constitute any felony offense, pursuant to paragraph 11B- 27.0011(4)(a), 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 suspension of certification to revocation. Specific violations and penalties that shall be imposed, absent mitigating circumstances, include the following:

          
          

          * * *

          
          

          8. Violation: False Statements (837.02, 837.021, 837.05(2), F.S.); Recommended Penalty Range: Prospective suspension to revocation.[4]

          
          

          * * *

          
          

    2. The Commission shall be entitled to deviate from the disciplinary guidelines in this rule section, 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 an Administrative Law Judge, if pursuant to Section 120.57(1), F.S., prior to the imposition of a final penalty. The Commission shall base a deviation from the disciplinary guidelines upon a finding of one or more of the following:

    
    

    1. Aggravating circumstances:

       
       

       1. Whether the certified officer used official authority to facilitate the misconduct.

          
          

       2. Whether the misconduct was committed while the certified officer was performing other duties.

          
          

       3. The number of violations found by the Commission.

          
          

       4. The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the

          preceding eight years or received a Letter of Guidance within the preceding five years.

          
          

       5. The severity of the misconduct.

          
          

       6. The danger to the public.

          
          

       7. The actual damage, physical or otherwise, caused by the misconduct.

          
          

       8. The lack of deterrent effect of the penalty imposed by the employing agency.

          
          

       9. The pecuniary benefit or self-gain to the officer realized by the misconduct.

          
          

       10. Whether the misconduct was motivated by unlawful discrimination.

           
           

       11. Any behavior constituting "domestic violence" defined by Section 741.28(1), F.S.

           
           

       12. Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.

       
       

    2. Mitigating circumstances:

    
    

    1. The officer's employment status in a position requiring Commission certification at the time of the final hearing before the Commission.

       
       

    2. The recommendations of character or employment references.

       
       

    3. The lack of severity of the misconduct.

       
       

    4. The length of time the officer has been certified by the Commission.

       
       

    5. Any effort of rehabilitation by the certified officer.

       
       

    6. The effect of disciplinary or remedial action taken by the employing agency or

       recommendations of employing agency administrator.

       
       

    7. The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.

       
       

    8. Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.

    
    

42. In its Proposed Recommended Order, Petitioner has

argued:

1. In this case, the appropriate penalty is revocation of certification. This penalty is consistent with Commission penalty guidelines and is appropriate, given

   the severity of the misconduct in this case. The Respondent tried to persuade another officer to send contraband out of a prison. She did so in exchange for an anticipated bribe from an inmate. Her misconduct represents an egregious violation of public trust, committed for personal gain.

   
   

2. The position of officer is one of great public trust. The Respondent has demonstrated that she is unworthy of a position of public trust and confidence. There can be no more basic public expectation than that those who enforce the laws must themselves obey the law, City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. 5th DCA 1989).

43. Having carefully considered the facts of the instant case in light of the provisions of Florida Administrative Code Rule 11B-27.005 set forth above, the undersigned agrees with Petitioner that, for the reasons Petitioner has stated, the disciplinary action that should be taken against Respondent for

the two violations she committed is revocation of her certificate.5 In view of her commission of these violations, Petitioner simply can no longer be trusted to honestly and faithfully discharge the duties of a correctional officer.

RECOMMENDATION

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

RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of Allegations One and Two and, based on these findings of guilt, revoke her certification.

DONE AND ENTERED this 12th day of July, 2007, in

Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 12th day of July, 2007.

ENDNOTES

1 The material facts alleged in the Administrative Complaint that Respondent did not dispute in her hearing request are, for purposes of this proceeding, deemed admitted. See Schafer v. Department of Business and Professional Regulation, 844 So. 2d 757, 758 (Fla. 1st DCA 2003).

2 The undersigned has accepted these factual stipulations. See Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative,

52 So. 2d 670, 673 (Fla. 1951)("When a case is tried upon stipulated facts the stipulation is conclusive upon both the trial and appellate courts in respect to matters which may validly be made the subject of stipulation."); Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is bound by the parties' stipulations."); and Palm Beach Community College v. Department of Administration, Division of Retirement, 579 So. 2d 300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other or different facts will be presumed to exist.").

3 The undersigned's findings regarding what transpired during Respondent's August 10, 2005, encounter with Sergeant McLain are based on the testimony of Sergeant McLain, who testified with apparent candor, sincerity, and honesty, uninfluenced by any bias or interest in the outcome of the case. Respondent's testimony regarding the encounter has been rejected as contrary to the greater weight of the evidence to the extent that it conflicts with Sergeant McLain's testimony.

4 Violations of Section 838.016(2), Florida Statutes, are not among the "specific violations" mentioned in Florida Administrative Code Rule 11B-27.005(5)(a).

5 In making this determination, the undersigned has considered the "recommendations of character [and] employment references" that Respondent presented at hearing, but has concluded that this mitigating evidence is outweighed by the serious nature of Respondent's transgressions.

COPIES FURNISHED:

Michael Crews, Program Director Division of Criminal Justice

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

Michael Ramage, General Counsel 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 32302-1489 Fatimah N. Holiday

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.

Docket for Case No: 07-000667PL

Orders for Case No: 07-000667PL