STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 18-3297PL

MICHAEL V. GRANGER,

Respondent.

/

RECOMMENDED ORDER

On August 10, 2018, Administrative Law Judge (ALJ)

J. Lawrence Johnston of the Division of Administrative Hearings (DOAH) conducted a disputed-fact hearing in this case by video teleconference at sites in Lakeland and Tallahassee.

APPEARANCES

For Petitioner: Ray Anthony Shackelford, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Respondent, pro se

(Address of Record) STATEMENT OF THE ISSUE

The issues are whether the Correctional Certificate issued to the Respondent by the Criminal Justice Standards and Training Commission (the Commission), should be revoked or otherwise

disciplined on charges stated in the Petitioner’s Amended Administrative Complaint,1/ FDLE case 40421.

PRELIMINARY STATEMENT

The Amended Administrative Complaint filed on December 21, 2017, charged the Respondent with conduct that violated section 828.12(1), Florida Statutes,2/ which prohibits cruelty to animals, and warranted discipline as a failure to maintain good moral character under section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b).3/ The Respondent disputed the charges and asked for a hearing. The Petitioner forwarded the matter to DOAH for assignment to an ALJ.

At the hearing on August 10, 2018, the Petitioner called three witnesses; the Petitioner’s Exhibits 1 and 2 were received in evidence; and the Respondent testified in his defense.

A Transcript of the hearing was filed on September 13. The next day, the Petitioner filed an Amended Proposed Recommended Order, which has been considered. The Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent was certified as a correctional officer by the Commission on July 12, 2006. The parties stipulated that the Respondent holds Correctional Certificate 258546. (The Amended Administrative Complaint alleges he holds Correctional Certificate 25846.)

   
   

2. On the afternoon of March 7, 2016, the Respondent was observed and videoed by a neighbor mistreating his dog. Specifically, the neighbor looked out her front window and saw the Respondent outside his house apparently bathing his dog, which was a large German shepherd. She could hear the Respondent’s nine-month-old child crying. She thought the child was standing behind a screen door. While she was watching, the dog got away from the Respondent and trotted toward the front door. The Respondent went after the dog, angrily grabbed it by the head and tail, lifted it off the ground several feet (to about waist-high), and slammed it down on the concrete walkway. He repeated the body slam and then brought the dog back to where he was washing it.

3. At that point, the neighbor decided to video the Respondent and his dog with her cell phone. The video recording shows the Respondent pulling up on the dog’s tail and punching the dog in the side. Then, the Respondent shortened the dog’s leash by wrapping it several times around his hand until his hand was near the dog’s collar. Then, he flipped the dog over on its side by suddenly and violently jerking the leash and collar.

4. After the neighbor witnessed the Respondent’s mistreatment of his dog, she reported him to the Polk County Sheriff’s office. A sheriff’s detective responded on March 21, 2016, and questioned the Respondent, who stated, “I guess I lost

   
   

   my temper that day.” The detective requested permission to remove the dog from the Respondent’s home to be examined by a veterinarian as part of an animal cruelty investigation, and placed in an animal shelter. The Respondent willingly surrendered the dog.

5. The veterinarian who examined the dog found it to have soft tissue trauma at the base of its tail, but no fractures or broken bones. The veterinarian explained that a dog’s tail is an extension of its spine, and an injury at or near the base of the tail could have resulted from yanking the tail, or from lifting the dog by the tail, which is not designed to bear weight. The Respondent’s dog weighed about 77 pounds, and the tail would have been supporting about half the dog’s weight the way the Respondent was handling it.

6. The veterinarian found that the dog had a temperature, and blood tests showed a high white blood cell count. Both symptoms are consistent with either inflammation from an injury, or an infection. The dog also had elevated kidney values, which could be consistent with an injury to the kidney, or with an infection. The veterinarian testified that she prescribed pain medication for the dog. The sheriff’s detective believed that antibiotics were prescribed.

   
   

7. No other significant injuries to the dog were found, but the veterinarian recommended that the dog not be returned to its owner. The Respondent did not object.

8. At the hearing, the Respondent testified that just prior to the incident, his dog had been acting aggressively toward his child and had bitten the Respondent in the hand. He testified that he hoped the dog would calm down if taken outside to be bathed. He claimed that the dog was growling and acting aggressively toward him. He testified that he was afraid for his child’s safety when the dog got away from him and ran toward the door. He testified that his child actually was standing behind a child’s gate at the door, not behind a screen door, as stated by his neighbor.

9. The neighbor disputed that the dog was acting aggressively while she was watching. She testified that the dog trotted to the front door with its tail wagging when it got loose from its owner during the bath. The video recording showed that the dog was not acting aggressively but was submissive while being manhandled by the Respondent. The Respondent admits that the dog did not try to bite him during his manhandling of the dog, and no growling (or much sound at all) could be heard on the video recording.

10. The Respondent’s claims about his dog’s aggression and his concerns about his daughter’s safety were not reported to the

    
    

    sheriff’s detective on March 21, 2016, or to anyone else before the hearing. Even if the neighbor was mistaken in thinking the Respondent’s child was standing behind a screen door, the rest of her unbiased testimony is credited as more worthy of belief than the Respondent’s self-serving testimony, to the extent of any conflict. Taken as a whole, the evidence was clear and convincing that the Respondent’s treatment of his dog was inhumane and unnecessary.

    CONCLUSIONS OF LAW

    
    

11. Because the Petitioner seeks to discipline the Respondent’s correctional certificate, it has the burden to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. See Dep’t of Banking & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996); Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987). This “entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So. 2d 398, 404 (Fla. 1994). See also 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 Elec. Corp. v. Shuler Bros., Inc.,

    
    

    590 So. 2d 986, 988 (Fla. 1st DCA 1991).

    
    

12. Disciplinary statutes and rules “must be construed strictly, in favor of the one against whom the penalty would be imposed.” Munch v. Dep’t of Prof’l Reg., Div. of Real Estate,

    592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep’t of Bus. & Prof’l Reg., 812 So. 2d 583, 583-84 (Fla. 3d DCA 2002);

    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.” (citing State v. Pattishall, 126 So. 147 (Fla. 1930)).

13. The grounds proven in support of the Petitioner’s assertion that the Respondent’s license should be disciplined must be those specifically alleged in the administrative complaint. See e.g., Trevisani v. Dep’t of Health, 908 So. 2d

    1108 (Fla. 1st DCA 2005); Cottrill v. Dep’t of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep’t of State, 501 So. 2d

    129 (Fla. 5th DCA 1987); Hunter v. Dep’t of Prof’l Reg., 458 So. 2d 842 (Fla. 2d DCA 1984). Due process prohibits taking disciplinary action against a licensee based on matters not

    
    

    specifically alleged in the charging instruments, unless those matters have been tried by consent. See Shore Vill. Prop.

    Owners’ Ass’n, Inc. v. Dep’t of Envtl. Prot., 824 So. 2d 208, 210

    
    

    (Fla. 4th DCA 2002); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

14. In this case, the Amended Administrative Complaint charges statutory violations but does not include any factual allegations. Nevertheless, the Respondent knew that the charges stemmed from his treatment of his dog on March 7, 2016, and the factual issues were tried by consent.

15. Section 943.13(7) provides that only persons with good moral character can be issued a correctional officer certificate. Section 943.1395(7) authorizes the Commission to define “good moral character” and to impose discipline upon a finding that the certificate holder has not maintained good moral character.

16. The Commission adopted rule 11B-27.0011(4)(b)1., which defines “good moral character” for purposes of certificate discipline to include acts that would constitute a violation of section 828.12, whether or not criminally prosecuted.

17. Section 828.12(1) states:

    
    

    A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, commits animal cruelty, a

    
    

    misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.

    
    

18. Section 828.02 defines “torment” to include “every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused.” Taken as a whole, the evidence was clear and convincing that the Respondent committed acts that violated section 828.12(1).

19. Section 943.1395(7) authorizes a wide range of penalties for violations. Under rule 11B-27.005(5)(b), the penalty guideline for an animal cruelty violation ranges from probation to suspension of certification. Rule 11B-27.005(6)(c) authorizes deviations from the penalty guidelines for aggravating and mitigating circumstances, but no deviation from the wide penalty range applicable in this case is necessary or appropriate.

20. The penalty proposed by the Petitioner is a 270-day suspension, followed by a year of probation, with a condition of successful completion of an approved course in anger management. Meaningful discipline by suspension of the Respondent’s certification, followed by probation, is appropriate to deter future violation, but 270 days seems extreme under the facts of this case, and it makes more sense to require the Respondent to complete the anger management course before reinstatement of his certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission find the Respondent guilty of failing to maintain good moral character by acts violating section 828.12(1); suspend his correctional certificate for 60 days, or until completion of a Commission-approved course in anger management, whichever is later; and, upon reinstatement of his certificate, place him on probation for one year, conditioned upon maintaining good moral character, as defined by rule 11B-27.0011(4)(b).

DONE AND ENTERED this 4th day of October, 2018, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 4th day of October, 2018.

ENDNOTES

1/ The charging document is entitled an “Amended Administrative Complaint.” In other parts of the record, it is referred to as

an Administrative Complaint. The record is not clear whether it actually is an Amended Administrative Complaint.

2/ Unless otherwise indicated, all statutory references are to the 2015 version of the Florida Statutes, which is the version in effect at the time of the alleged violation in March 2016.

3/ Unless otherwise indicated, all rule citations are to the rules that were in effect at the time of the alleged violation in March 2016.

COPIES FURNISHED:

Respondent (Address of Record)

Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

Respondent (Address of Record)

Dean Register, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Jason Jones, General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 (eServed)

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: 18-003297PL

Orders for Case No: 18-003297PL