STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

DIANA HALL, )

)

Respondent. )

Case No. 07-3655PL

)

RECOMMENDED ORDER

On October 9, 2007, a formal administrative hearing in this case was held by videoconference between Tallahassee and Fort Myers, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Diana Hall, pro se

790 12th Street Northeast Naples, Florida 34120

STATEMENT OF THE ISSUES

The issues in the case are whether the Respondent violated Florida Administrative Code Rule 11B-27.005(3)(b), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 15, 2007, the Florida Criminal Justice Standards and Training Commission (Petitioner) alleged that Diana Hall (Respondent) violated Florida Administrative Code Rule 11B-27.005(3)(b), by failing to comply with a Final Order entered in a previous disciplinary proceeding. The Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing. On August 16, 2007, the Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and had two exhibits admitted into evidence. The Respondent testified on her own behalf and had one exhibit admitted into evidence.

A Transcript of the hearing was filed on October 19, 2007.

The Petitioner filed a Proposed Recommended Order. The Respondent filed a letter that has been treated as a Proposed Recommended Order. Both were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent held Correctional Certificate number 44905.

2. On June 29, 2005, the Respondent signed a Stipulation and Settlement Agreement (Agreement) related to an Administrative Complaint filed by the Petitioner in a previous disciplinary proceeding against the Respondent (Criminal Justice Standards and Training Commission Case Nos. 20073 and 20242). The Respondent was represented by legal counsel during the 2005 proceeding.

3. The Agreement imposed a one-year probationary period commencing 15 days from the entry of a final order. The Agreement was approved and adopted by the Petitioner as stated in a Final Order dated November 21, 2005.1 The Respondent's probationary period commenced on December 6, 2005, and ended one year later.

4. Among the conditions set forth in the Agreement was the following requirement set forth at paragraph 4:

   As a condition of probation, the Respondent shall provide staff with proof of successful completion of a Commission-approved ethics training course.

   
   

5. The Respondent failed to submit any proof that she had successfully completed a Commission-approved ethics training course by the expiration of the probationary period.

6. On December 6, 2006, a staff specialist assigned to monitor the Respondent's compliance with the requirements of probation sent a letter by regular U.S. Mail to the Respondent's

   last known address (Jonquil Court in Naples, Florida), reiterating the requirement to submit the information related to completion of the approved ethics training course. The staff specialist received no response to the letter.

7. The staff specialist then accessed state driver license records to ascertain whether the Respondent's address had changed and observed that the Respondent had a new address. The staff specialist sent a second letter to the Respondent about a month after the first, this time by certified mail to the address on the driver license records (12th Street Northeast, in Naples, Florida).

8. The certified letter was returned on February 23, 2007, as unclaimed. Postal service documentation indicated that three unsuccessful attempts were made to deliver the letter.

9. Based on the apparent failure to comply with the ethics training course requirement, the Petitioner instituted a disciplinary proceeding against the Respondent. A notice of the probable case hearing scheduled for June 12, 2006, was sent by regular mail to the Respondent at the same address to which the certified letter had been sent. The Respondent received the correspondence related to the probable cause hearing and contacted the Petitioner.

10. The Respondent failed to supply proof of successful completion of a Commission-approved ethics training course prior

    to the June 12, 2007, probable case hearing, and the Administrative Complaint at issue to this proceeding was entered.

11. In response to the Administrative Complaint, the Respondent submitted a letter dated August 30, 2007, which stated as follows:

    To Whom it [sic] May Concern:

    
    

    Diana Hall completed PHI-3301 Philosophy at Hodges University as part of her associate degree. The associate degree she completed gave her the choice between Ethics and Philosophy. Philosophy and Ethics are both humanities classes.

    
    

    Please allow the substitution of Philosophy for the required Ethics class based on the category of both classes being a humanity requirement.

    
    

    Thank you.

    
    

    Sincerely, [Signature] Kimberly Morehouse Registrar

    Hodges University

    
    

12. The letter does not identify when the Philosophy course was taken. At the hearing, the Respondent testified that she took the course during the winter of 2006. A grade report indicated that the course was taken in the fall of 2005, and the Respondent also acknowledged that the course could have been taken in 2005.

13. The Respondent graduated from Hodges University with an associate degree in Nursing/Medical Assistant on June 10, 2007. She completed the requirements for the degree in December 2006. The grade report indicates that in addition to the Philosophy course, the Respondent took a course in Medical Terminology and a course in Medical Office Procedures during the same term.

14. The evidence establishes that the Respondent has failed to comply with the probationary condition requiring submission of proof that she completed an ethics training course approved by the Petitioner.

15. There was no credible evidence that the Respondent made any attempt to verify whether the Philosophy course would comply with the probationary requirement that an ethics training course be successfully completed prior to taking the course. The Respondent testified that she provided the information related to the Philosophy course to her legal counsel, but there was no evidence that the Respondent made any attempt to ascertain whether the course had been accepted by the Petitioner as meeting the probationary condition.

16. There was no credible evidence that the Philosophy course completed by the Respondent specifically addressed any ethical issues specifically related to law enforcement.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

18. The Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The burden has been met.

19. The "clear and convincing" standard requires:

    
    

    [T]hat 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.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

20. The Administrative Complaint alleged that Respondent violated Florida Administrative Code Rule 11B-27.005(3) by failing to comply with a lawful order of the Commission entered in a disciplinary proceeding. The cited section provides, in relevant part as follows:

    Pursuant to the provisions of Section 943.1395(8), F.S., disciplinary proceedings

    shall be conducted as prescribed in

    Chapter 120, F.S., Administrative Procedures Act, and Rule Chapter 28, F.A.C., Uniform Rules of Procedure, when there is a determination of probable cause that a certificate holder, hereinafter referred to as a “certified officer,” has failed to maintain compliance with:

    
    

    * * *

    
    

    (b) An order of the Commission previously issued during a disciplinary hearing. . . .

    
    

    * * *

    
    

    (7) The Commission shall impose one or more of the following penalties, listed in increasing order of severity:

    
    

    1. The issuance of a reprimand.

       
       

    2. Successful completion by the certified officer of a Basic Recruit Training Program, Advanced Training Program, or Career Development Training Program, or such retraining deemed appropriate by the Commission.

       
       

    3. Placement on a probationary status for a period not to exceed two years and subject to the terms and conditions imposed by the Commission. The Commission may impose one or more of the following terms and conditions of probation:

    
    

    1. Periodic reports from the officer, supervisor, or counselor, or indirect or direct supervision by a Commission-approved supervisor.

       
       

    2. Furnishing urine samples and consents to the release of analysis results of random or scheduled urine drug tests at the officer’s expense.

    3. Participation in psychological, occupational, or substance abuse counseling.

       
       

    4. Successful completion of training or retraining specified in paragraphs (5)(b) and (c) of this rule section.

       
       

    5. Refraining from violations of Sections 943.13(4) and (7), F.S.

       
       

    6. The payment of restitution for damages or loss created by the certified officer’s misconduct.

       
       

    7. The effective date of any period of probation imposed on a respondent by the Commission shall begin fifteen days from the filing date of the Final Order, unless such probation is to follow a period of prospective suspension. Commission staff shall monitor the probation status of each officer to ensure compliance with the conditions of probation. Commission staff shall report to the Commission satisfactory completion of probation, as well as any violations of the conditions of probation. If the officer violates any of the conditions of probation, Commission staff shall report the violations to the Commission for consideration of further disciplinary action, pursuant to subsection (3) of this rule section and Section 943.1395(7)(c), F.S. (Emphasis supplied)

    
    

21. Subsection 943.1395(7), Florida Statutes (2006), provides as follows:

    Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    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. (Emphasis supplied)

    
    

22. The evidence establishes that the Respondent has violated the terms and conditions of her probation by failing provide the required documentation of successful completion of an ethics training course approved by the Petitioner. Additionally, the evidence fails to establish that the Respondent successfully completed such a course.

23. The Respondent testified that she provided the Philosophy course information to legal counsel representing her at the time of the prior proceeding. No evidence was offered at the hearing that would support a finding that the Philosophy course was the equivalent of the required ethics training course. The evidence further establishes that the Respondent made no credible effort to ascertain whether the course had been accepted by the Petitioner as meeting the probationary condition, and thereby made no effort to meet the requirement of the probationary condition.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order revoking the Respondent's correctional certificate.

DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 15th day of November, 2007.

ENDNOTE

1/ After execution of the Agreement and before the Final Order was entered, the Respondent changed her place of residence. As noted by Petitioner's counsel at the hearing, the Agreement required that notice of such changes be reported in writing to the Petitioner's staff. Although the Respondent apparently failed to do so, the Administrative Complaint in this case does not contain allegations related to a failure to provide notice. In any event, the evidence established that the Respondent was aware of the terms of the Agreement (which she personally signed) and that she received a copy of the Final Order, having submitted a mail forwarding notice to her local Post Office.

COPIES FURNISHED:

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

Diana Hall

790 12th Street Northeast Naples, Florida 34120

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services 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: 07-003655PL

Orders for Case No: 07-003655PL