STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

KHATONYA L. CLEMONS, )

)

Respondent. )

Case No. 07-1883PL

)

RECOMMENDED ORDER

Notice was provided and on June 25, 2007, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2007). The hearing location was the Division of Administrative Hearings, the Desoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing commenced at 9:00 a.m. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Khatonya L. Clemons, pro se

STATEMENT OF THE ISSUE

Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent, in her capacity as a corrections officer for the alleged violation of Section 943.1395(7), Florida Statutes (2005)?1

PRELIMINARY STATEMENT

On November 15, 2006, by an Administrative Complaint in Case No. 23863, the Commission brought an action against Respondent related to her correctional certificate issued by the Commission. In pertinent part the Administrative Complaint stated:

2.b. On or about November 22, 2005, the Respondent, Khatonya L. Clemons, did unlawfully, knowingly, and willfully resist, obstruct or oppose Investigator Sally Cole and Corporal Gerald Knecht, law enforcement officers, in the lawful execution of a legal duty, to wit: placing Respondent, Khatonya

L. Clemons under lawful arrest, by resisting, struggling, and causing injury to Corporal Gerald Knecht's hand with her keys.[2]

Based upon the remaining factual allegation Respondent is accused of the following:

3. The actions of the Respondent did violate the provisions of Section . . . 843.01 or any lesser included offenses, Section 943.1395

. . . (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 (2004), which require that a Correctional Officer in the State of Florida have good moral character.

The Commission provided Respondent a form which allowed her to select among options in electing her rights to respond to the Administrative Complaint. Respondent chose the option to dispute the allegations of fact contained in the Administrative Complaint, thereby requesting a Section 120.57(1), Florida Statutes, formal hearing before an Administrative Law Judge assigned by the Division of Administrative Hearings (DOAH). In particular, in relation to the remaining issues to be resolved, she contested those allegations in paragraphs 2(b), and paragraph 3, to the Administrative Complaint. That choice was made on February 13, 2007.

On April 30, 2007, Petitioner forwarded the case to DOAH for conduct of the hearing. Robert S. Cohen, Director and Chief Judge of DOAH assigned the case to the undersigned in reference to DOAH Case No. 07-1883PL.

The case was noticed for hearing and heard on the aforementioned date.

When the hearing commenced, Petitioner's counsel requested that Respondent clarify whether her position concerning disputed facts included reference to paragraph 1 to the Administrative Complaint. It did not. In effect, Respondent agreed that she had been certified by the Commission on November 20, 1997, and was issued Correctional Certification No. 176344.

Petitioner called Sergeant Virgil Joyner; Investigator Sally Cole; Investigator Christopher Smith; and Corporal Gerald Knecht as its witnesses. Respondent testified on her own behalf.

Petitioner called Investigator Cole and Corporal Knecht as rebuttal witnesses.

On July 10, 2007, a hearing Transcript was filed. On July 19, 2007, Respondent filed her proposals addressing the

case. On July 20, 2007, Petitioner filed a Proposed Recommended Order. The submissions by the parties have been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Commission on November 20, 1997, and was issued Correctional Certificate No. 176344.

2. On November 22, 2005, Investigator Sally Cole was a law enforcement officer with the Jefferson County Sheriff's Office (Sheriff's Office) headquarted in Monticello, Florida. In her capacity as a law enforcement officer she had authority to serve arrest warrants.

3. While Investigator Cole was in her office on the date at issue, the dispatcher for the Sheriff's Office called to tell Investigator Cole that there was a "lady in the lobby" of the office and jail complex related to the Sheriff's Office, who had an outstanding warrant pending against her. The woman referred

   to was Respondent, who was in Monticello, Florida to visit her husband, who was incarcerated at the Jefferson County Jail.

4. Investigator Cole went to obtain the warrant which had been issued from Gadsden County, Florida.

5. When Investigator Cole confirmed the information concerning the warrant issued by Gadsden County for Respondent's arrest, Warrant Number 05-717CFA, referring to a felony, Investigator Cole went to find Respondent.

6. Investigator Cole located Respondent who was leaving the lobby of the Sheriff's Office complex and walking to the parking lot. Investigator Cole approached Respondent in the parking lot and explained information concerning the warrant. When Investigator Cole approached the Respondent, she told the Respondent that she was Investigator Sally Cole. When Investigator Cole tried to explain the information concerning the Gadsden County warrant to Respondent, the Respondent in reply continued to say that "she had never gotten in any trouble." Investigator Cole told Respondent that the Respondent was under arrest in view of the warrant from Gadsden County.

7. Respondent got into her car. Two other persons were in the Respondent's automobile. They were her children. The children were ages 12 and 15.

8. Investigator Cole told the Respondent to get out of the car. Respondent refused. Respondent started to become belligerent. Eventually Respondent got out of the car.

9. By that time the Sheriff's Office dispatcher had made contact with other law enforcement officers, deputies, working for that agency. This contact was made because of a concern that Respondent was not being cooperative with Investigator Cole. Those persons who were contacted were Investigator Christopher Smith and Corporal Gerald Knecht.

10. After Respondent got out of her car, Investigator Cole took her by the elbow to guide her inside the complex to be booked under the warrant issued by Gadsden County. Respondent started screaming at the deputy "to get her hands off of her." At that point the other deputies were in attendance to assist Investigator Cole.

11. Respondent was not cooperating and tried to pull away from Investigator Smith when he was assisting in the escort. Investigator Smith told Respondent to cooperate and stop resisting. His identity was established by the badge on his belt which would remind Respondent that he was a law enforcement officer.

12. During the incident, with her car keys in her hand and the attempt by the deputies to control her hands, Respondent in

    jerking away cut Corporal Knecht, either with the keys or her fingernails. This caused a minor laceration to the deputy.

13. By the time the Respondent was brought inside the complex, she was "kind of dropping her weight, not wanting to walk and flailing her arms." This is understood to mean that someone had to support Respondent's weight. In addition Respondent was swinging her arms around, not with the intent to strike anyone, but snatching them away. Respondent was very upset and belligerent; not wanting to cooperate.

14. Once in the lobby to the Sheriff's Office, Respondent began to be more difficult by trying to sit down and impede the escort.

15. As the corridor to the jail was approached, then Corporal Virgil Joyner of the Jefferson County Sheriff's Office came to assist in controlling Respondent, in an effort to escort her to the area where she would be booked. Corporal Joyner had heard the commotion from where he was located in the booking area of the jail. Respondent was being very loud. He observed the struggle that the other deputies were having in trying to maintain control and advance Respondent into the jail portion of the Sheriff's Office. He got behind the Respondent and started pushing her in the direction of the jail portion of the Sheriff's Office. Finally, Respondent was placed in secure confinement in the jail part of the Sheriff's Office.

16. Later when Investigator Cole went back to talk to Respondent, she apologized and said she was upset and again stated that she had never been in trouble and that she had not stolen anything. This refers to the nature of the arrest warrant from Gadsden County, which was in relation to allegations of theft.

17. Because of the difficulties that the officers had experienced in trying to serve the warrant and book the Respondent, Investigator Cole charged the Respondent with resisting arrest with violence. That charge forms the basis for

    the present case.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569 ad 120.57(1), Florida Statutes (2007).

19. Respondent is a certified corrections officer, pursuant to Correctional Certificate No. 176344 issued by the Commission. She was certified on November 20, 1997.

20. Through the Administrative Complaint in this case, Respondent has been accused, in that Respondent did "unlawfully, knowingly, and willfully resist, obstruct or oppose Investigator Sally Cole and Corporal Gerald Knecht, law enforcement officers, in the lawful execution of a legal duty, to wit: placing

    Respondent, Khatonya L. Clemons under lawful arrest, by resisting, struggling and causing injury to Corporal Gerald Knecht's hand with her keys."

21. Based upon that alleged misconduct Respondent is accused of violating Sections 843.01, 943.13(7), and 943.1395(7), Florida Statutes (2005), as well as Florida Administrative Code Rule 11B-27.0011(4)(a), for reason that she lacks good moral character.

22. This is a disciplinary case and for that reason Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance Division of Securities and

    Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla.

    1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

23. The meaning of clear and convincing evidence is explained in the case In Re: Davey 645 So. 2d 398 (Fla. 1994), quoting with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

24. Given the penal nature of this case the disciplinary provisions set forth in the statutes and rule related to the Administrative Complaint have been strictly construed. Any ambiguity in interpreting those provisions favors the Respondent. See State v. Pattishall, 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester v. Department of Professional and Occupational

    Regulation, State Board of Medical Examiners, 348 So. 2d 923 (Fla. 1st DCA 1997).

25. Section 943.1395(7), Florida Statutes (2005), states:

    
    

    1. 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.

       
       

       1. Revocation of certification.

          
          

       2. Suspension of certification for a period not to exceed 2 years.

          
          

       3. 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.

          
          

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

          
          

       5. Issuance of a reprimand.

       
       

26. Section 943.13(7), Florida Statutes (2005), requires that Respondent:

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

27. More particularly, in arriving at its requirement for the maintenance for good moral character, the Commission adopted Florida Administrative Code Rule 11B-27.0011(4)(a), which states:

    For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395 . . . (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13.(7), F.S., is defined as:

    
    

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

    
    

28. Section 843.01, Florida Statutes (2005), is a felony offense. It states:

    Resisting officer with violence to his or her person. - Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7),

    (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; parole and probation supervisor; county probation officer; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082,

    s. 775.083, or s. 775.084.

    
    

29. Clear and convincing evidence has been presented to show that Respondent knowingly and willfully obstructed or opposed deputies with the Jefferson County Sheriff's Office in

    connection with Investigator Cole's attempt to serve Respondent with a warrant and place her under arrest, and to be brought into the Sheriff's Office jail area for booking. She resisted the officers by flailing about, making herself limp, such that the deputies had to support her weight, as contrasted with walking on her own, at a time the deputies were legally authorized to execute process, the service of the warrant, and were attempting to perform their duties. Her actions offered and did violence to the legally authorized persons by the flailing about and dropping of her weight and constituted resistance, obstruction, and opposition to the deputies. Corporal Knecht's minor injury constituted violence when he was cut by Respondent in the fray.

    The nature of the offense was similar to that in State v. Green,

    
    

    400 So. 2d 1322 (Fla. 5th DCA 1981), pertaining to the facts in that case and the present case. Upon the facts in the present case Respondent has violated Section 843.01, Florida Statutes (2005).

30. Based upon the failure to maintain good moral character as envisioned by Florida Administrative Code Rule 11B- 27.0011(4)(a), for violating Section 843.01, Florida Statutes (2004), Respondent has violated Section 943.1395(7), Florida Statutes (2005), and is subject to punishment in accordance

    with that provision. Guidance concerning the appropriate punishment is set forth in Florida Administrative Code

    Rule 11B-27.005(5)(a), which suggests the possible range of punishment from suspension to revocation of Respondent's correctional officer certificate.

31. No indication was made that the Respondent has a prior disciplinary history with the Commission.

RECOMMENDATION

Upon the consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Section 943.1395(7), Florida Statute, suspending the Respondent's correctional officer certificate for a period of 20 days, to be followed by one year probation with appropriate conditions for successfully concluding the probationary period.

DONE AND ENTERED this 21st day of August, 2007, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 21st day of August, 2007

ENDNOTES

1 Originally, Respondent had been charged with a violation of Section 943.1395(6), Florida Statutes (2005). That allegation was withdrawn as reflected in the Petitioner's Proposed Recommended Order.

2 Respondent had also been accused in Paragraph 2a to the Administrative Complaint of an alleged violation that took place on or about May 31, 2005. When the hearing commenced the Petitioner abandoned that allegation. As a consequence the reference within Paragraph 3 to the Administrative Complaint to Section 812.155(2), Florida Statutes (2005), was unnecessary.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Khatonya L. Clemons and

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

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: 07-001883PL

Orders for Case No: 07-001883PL