STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 12-0163PL

)

STEVENS RODNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1/ before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on April 2, 2012, by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Elissa R. Saavedra, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: Stevens Rodney, pro se

STATEMENT OF THE ISSUES

Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about June 28, 2011, Petitioner issued an Administrative Complaint against Respondent, a certified correctional officer, alleging that, "[o]n or about November 9, 2010, the Respondent, Stevens Rodney, did unlawfully commit a battery upon Iris Thomas, by actually touching or striking Iris Thomas or intentionally causing bodily harm to Iris Thomas against her will." According to the Administrative Complaint, "[t]he actions of the Respondent did violate the provisions of [s]ection[s] 784.03 or any lesser included offenses; [s]ection 943.1395(7), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in [s]ection 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 [s]ection 120.57(1), Florida Statutes, before an administrative law judge appointed by [DOAH]." The matter was referred to DOAH on January 12, 2012, for the assignment of an

administrative law judge to conduct the hearing Respondent had requested.

As noted above, the final hearing in this case was held before the undersigned on April 2, 2012. Three witnesses testified at the hearing: Sergeant Brett Woods (on behalf of Petitioner), and Respondent and Iris Thomas (on behalf of Respondent). No other evidence was presented.

At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing of the final hearing transcript with DOAH) for the filing of proposed recommended orders.

The Transcript of the final hearing (consisting of one volume) was filed with DOAH on April 18, 2012.

Petitioner timely filed its Proposed Recommended Order on April 26, 2012. To date, Respondent has not filed any post- hearing submittal.

FINDINGS OF FACT

1. Respondent is now, and has been since October 8, 2008, certified by Petitioner as a correctional officer. He holds Correctional Certification No. 279092.

2. Sergeant Brett Woods is a 23-year veteran with the City of Miami (City) Police Department (Miami PD).

3. On November 9, 2010, Sergeant Woods, who was then a uniformed Miami PD patrol officer, was on-duty in his marked

   
   

   patrol car when he was dispatched to a loud music call at 2000 South Miami Avenue in the Coral Way area of the City (Dispatch Location).

4. When Sergeant Woods arrived at the Dispatch Location (at around 9:00 p.m.), his attention was drawn to a visibly upset man, then-unknown to him, who was banging on the front door of a home across the street (located at 2031 South Miami Avenue) and loudly making expletive-filled demands to be let into the home. As Sergeant Woods would later learn, the man creating this disturbance was Respondent.

5. Respondent resided in the home along with his then (and current) fiancée, Iris Thomas--another individual with whom Sergeant Woods was, at the time, totally unfamiliar.

6. Using his patrol car's loud speaker, Sergeant Woods tried to quiet Respondent, but Respondent ignored him.

7. Sergeant Woods then exited his patrol car and started to approach Respondent, who was still causing a commotion at the front door of the home. As he did so, he asked Respondent (at a distance) to calm down and tell him what his problem was. In response to Sergeant Woods's request, a still-visibly upset Respondent turned around and yelled at Sergeant Woods, "Fuck you, this isn't your business." He then began to walk towards Sergeant Woods. He had taken only several steps, when Ms. Thomas opened the door and stepped outside, prompting Respondent

   
   

   to change direction and aggressively charge Ms. Thomas. As he did so, he yelled, "Bitch, get back inside." When he was within arm's reach of Ms Thomas, he forcefully shoved her on the right shoulder as she stood there passively and in a nonthreatening manner. The shove caused Ms. Thomas to stumble backwards into the doorframe of the door she had just opened.2/

8. From his vantage point approximately 10 to 12 feet away, Sergeant Woods had an unobstructed view of, and could clearly hear, everything that had transpired between Respondent and Ms. Thomas after the latter had exited the home. He immediately placed Respondent under arrest for simple battery and took him into custody. An inventory search of Respondent's person performed by Sergeant Woods before he placed Respondent in his patrol car revealed that Respondent was carrying

   Ms. Thomas' driver's license and social security card in his wallet. From his examination of the driver's license, which had Ms. Thomas' photograph on it, Sergeant Woods learned Ms. Thomas' identity.

9. After placing Respondent in his patrol car, Sergeant Woods tried to talk to Ms. Thomas, but she was uncooperative and refused to answer any of his questions.3/

10. Up until the final hearing in this case, Sergeant Woods had no further contact with either Respondent or

    Ms. Thomas.

    
    

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120.

12. At all times material to the instant case, section 943.13(7) has provided that any person employed or appointed as a 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]."

13. At all times material to the instant case, section 943.1395(7) has authorized Petitioner to revoke the certification of a 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)," or, alternatively, to impose one or more of the following lesser penalties on the certificate holder: "[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 by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by [Petitioner]"; and "[i]ssuance of a reprimand."

14. Petitioner has the ultimate authority to administratively interpret the provisions of sections 943.13(7) and 943.1395. It has defined by rule (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 [s]ection 943.1395[](7) . . . , a certified officer's failure to maintain good moral character required by section 943.13(7)." At all times material to the instant case, rule 11B-27.0011(4)(b)1. has provided that such a "failure to maintain good moral character" includes, among other things, "[t]he perpetration by an officer of an act that would constitute . . . the following misdemeanor or criminal offense[] whether criminally prosecuted or not: . . . 784.03, . . .

    F. S."

    
    

15. At all times material to the instant case, section 784.03(1) has provided as follows:

    (1)(a) The offense of battery occurs when a person:

    
    

    1. Actually and intentionally touches or strikes another person against the will of the other; or

       
       

    2. Intentionally causes bodily harm to another person.

       
       

       (b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

       
       

16. Because of their penal nature, the foregoing statutory and rule provisions must be strictly construed, with any reasonable doubts as to their meaning being resolved in favor of

    
    

    the certificate holder. See Camejo v. Dep't of Bus. & Prof'l Reg., 812 So. 2d 583, 583-84 (Fla.3d DCA 2002)("'Statutes such as those at issue authorizing the imposition of discipline upon licensed contractors are in the nature of penal statutes, which should be strictly construed.'"); and McClung v. Crim. Just.

    Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984) ("[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee.").

17. Petitioner may take action against a correctional officer's certification only after the officer has been given

    reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to sections 120.569 and 120.57. See § 120.60(5).

18. An evidentiary hearing must be held if requested by the officer when there are disputed issues of material fact.

    See Hollis v. Dep't of Bus. & Prof'l Reg., 982 So. 2d 1237, 1239 (Fla. 5th DCA 2008); and §§ 120.569(1) and 120.57(1).

19. At the hearing, Petitioner bears the burden of proving that the officer engaged in the conduct alleged in the charging instrument. Proof greater than a mere preponderance of the

    
    

    evidence must be presented. Clear and convincing evidence is required. See Dep't of Banking & Fin., Div. of Sec. & Investor

    Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996);

    
    

    Dieguez v. Dep't of Law Enf., Crim. Just. Stds. & Training Comm'n, 947 So. 2d 591, 595-596 (Fla. 3d DCA 2007); Newberry v. Fla. Dep't of Law Enf., 585 So. 2d 500 (Fla. 3d DCA 1991); and §

    120.57(1)(j) ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

20. 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); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric

    Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

21. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits an agency from taking penal action against a certificate holder or licensee based on matters (either factual or legal) not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Trevisani v. Dep't of

    Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000); Dep't of Rev. v. Vanjaria Enters., 675 So. 2d 252,

    254 (Fla. 5th DCA 1996); and Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

22. In the instant case, the charging instrument (which is in the form of an Administrative Complaint) alleges that Respondent has failed to maintain "good moral character" by

    
    

    virtue of his having "violate[d] the provisions of [s]ection 784.03" when, "[o]n or about November 9, 2010, [he] did unlawfully commit a battery upon Iris Thomas, by actually touching or striking Iris Thomas or intentionally causing bodily harm to Iris Thomas against her will."

23. Through the credible testimony of Sergeant Woods, Petitioner established by clear and convincing evidence that, as alleged in the Administrative Complaint, on November 9, 2010, Respondent committed a battery upon Ms. Thomas in violation of section 784.03(1)(a)1.4/ when he shoved her into the doorframe of the front door of their residence.5/ Respondent therefore, as further alleged in the Administrative Complaint, is subject to disciplinary action pursuant to section 943.1395(7) for failure to maintain "good moral character."

24. In determining what disciplinary action Petitioner should take against Respondent for his failure to maintain "good moral character," it is necessary to consult the "disciplinary guidelines" adopted by Petitioner in Florida Administrative Code Rule 11B-27.005, as they existed on November 9, 2010, the date of the battery committed by Respondent. See Parrot Heads, Inc.

    v. Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own

    rules . . . creat[ing] guidelines for disciplinary penalties."); and Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063

    
    

    (Fla. 1st DCA 1996)("[T]he case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations.").

25. On November 9, 2010, rule 11B-27.005 provided, in pertinent part, as it does today, 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.

    
    

    (b) In determining a penalty that may be imposed by the Commission, when a penalty guideline recommendation includes "suspension," the Commission is authorized to consider the number of days of employment suspension imposed upon the officer by the employing agency for retroactive or parallel inclusion in the length of a certification suspension imposed by the Commission. When a penalty guideline recommendation includes "prospective suspension," no such inclusion is authorized.

    
    

    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:

       
       

       * * *

       
       

       (b) For the perpetration by the officer of an act that would constitute any of the misdemeanor offenses, pursuant to paragraph 11B-27.0011(4)(b), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation of certification to suspension of certification. Specific violations and penalties that shall be imposed, absent aggravating or mitigating circumstances, include the following:

       
       

       * * *

       
       

       2. Violation: Battery

       Recommended Penalty Range: Suspension

       
       

       * * *

       
       

    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 an Administrative Law Judge . . . 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(2), F.S.6/

          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 the 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.

       
       

    3. 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),

       1. 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.

    
    

    1. Suspension of certification and the privilege of employment as an officer for a period not to exceed two years.

       
       

    2. Revocation of certification.

    
    

26. Having considered the facts of the instant case in light of the pertinent and applicable provisions of rule 11B-

27.005 set forth above, it is the view of the undersigned that, as punishment for having failed to maintain "good moral character," Respondent should have his certification suspended for a period of 15 days and be placed on probationary status for a period of six months.7/

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 that Respondent committed the violation alleged in the Administrative Complaint and, as punishment therefor, suspending his certification for 15 days and placing him on probationary status for six months.

DONE AND ENTERED this 11th day of May, 2012, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2012.

ENDNOTES

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to that version of Florida Statutes in effect at the time of the occurrence of the particular event or action being discussed.

2/ The record is devoid of evidence that Ms. Thomas sustained any injuries as a result of Respondent's unwarranted use of force against her.

3/ The foregoing findings concerning the events of November 9, 2010, are based on the highly persuasive testimony of Sergeant Woods, which the undersigned has determined to be more credible than the testimony of Respondent and of his fiancée, Ms. Thomas, to the contrary. Unlike Respondent and Ms. Thomas, Sergeant Woods had no apparent motive or reason to testify falsely, and the undersigned, having reviewed the complete evidentiary record and having had the opportunity to observe the demeanors of Sergeant Woods, Respondent, and Ms. Thomas while on the stand, has no hesitancy in concluding that it was Sergeant Woods--not Respondent, nor Ms. Thomas--who testified truthfully and accurately concerning these events.

4/ The record evidence, however, does not support a finding that there was a battery of the type described in section 784.03(1)(a)2., inasmuch as there was no proof presented that Ms. Thomas suffered any "bodily harm" as a result of Respondent's actions.

5/ That Petitioner relied on circumstantial, rather than direct, evidence to show that the shoving of Ms. Thomas was against her will did not render Petitioner's proof insufficient. See State v. Clyatt, 976 So. 2d 1182, 1183 (Fla. 5th DCA 2008)(lack of consent can be established by circumstantial evidence in a simple battery case).

6/ "Domestic violence" is defined in section 741.28(2) as follows:

Domestic violence" means any assault, aggravated assault, battery, aggravated

battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Because the "battery" committed in the instant case was not shown to have "result[ed] in physical injury or death," it did not, contrary to the assertion made by Petitioner in its Proposed Recommended Order, "constitut[e] 'domestic violence' defined by [s]ection 741.28(2)."

7/ Respondent's lack of testimonial candor at the final hearing cannot be, and therefore has not been, taken into consideration in determining the appropriate penalty in this case. See Bernal v. Dep't of Prof'l Reg., 517 So. 2d 113, 115 (Fla. 3d DCA 1987), approved, 531 So. 2d 967 (Fla. 1988)(disciplinary action against licensee may not be increased based upon licensee's "alleged lack of candor in his testimony before the hearing

officer[,] . . . an offense with which he was not charged"; "one's conduct in defending an action against him may not be the subject of an increased penalty if he is nevertheless found guilty of the substantive crime charged."); and Klein v. Dep't of Prof'l Reg., 625 So. 2d 1237, 1238 (Fla. 2d DCA 1993)("It is also clear that the Board voted to revoke Klein's license to practice medicine based on its belief that Klein had committed infractions not charged and was untruthful [at hearing].

Neither of these grounds provide support for the Board's action.").

COPIES FURNISHED:

Elissa R. Saavedra, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 Stevens Rodney

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

Michael Crews, Program Director Division of Criminal Justice

Professional Services

Florida 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: 12-000163PL

Orders for Case No: 12-000163PL