STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 18-5678PL

CARL C. BROWN,

Respondent.

/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on February 19, 2019, in Tallahassee, Florida, before James H. Peterson, III, an Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ray Anthony Shackelford, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302 For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent, Carl C. Brown (Respondent), failed to maintain good moral character required of law enforcement officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On December 13, 2017, Petitioner, Florida Department of Law Enforcement (Petitioner or the Department), filed an Administrative Complaint before the Florida Criminal Justice Training and Standards Commission against Respondent, alleging that Respondent violated sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B- 27.0011(4)(c)1/, while on duty at the W.A. Woodham Justice Center. Respondent timely filed an Election of Rights form disputing the allegations and requesting an administrative hearing.

On October 25, 2018, the Department referred the case to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge. The case was assigned to the undersigned and scheduled for an administrative hearing to be held live in Tallahassee on February 19, 2019.

At the hearing, official recognition was taken of chapter 120, Florida Statutes; sections 943.1395(7) and

943.13(7); and rule 11B-27.0011(4)(c). The Department presented the testimony of sheriff’s assistant, Betty Jean Carter; custodian, Rachel McPherson; inmate trustee, Marketa Powell; custodian of records, Richard Terry Baker; patrol commander, Larry Gilyard; and assistant chief investigator, Anglie Holmes- Hightower. The Department offered four exhibits, which were

received into evidence as Petitioner’s Exhibits P-1 through P-4. Respondent did not appear or present any evidence.

The proceedings were recorded and a transcript was ordered. The parties were given 10 days from the filing of the transcript within which to file proposed recommended orders. The one- volume Transcript was filed on March 6, 2019, and the Department timely filed its Proposed Recommended Order on March 8, 2019.

Respondent did not file a proposed recommended order. The Department's Proposed Recommended Order was considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on January 27, 2017, and issued Law Enforcement Certification Number 340839.

2. The Department is the state agency responsible for enforcing standards applicable to law enforcement certificates, pursuant to section 943.12 and chapter 120.

3. Respondent had notice of the time and date of the hearing, but did not attend or present any evidence.

4. Respondent was employed by the Quincy Police Department from April 3, 2017, to July 28, 2017.

5. During Respondent's employment with the Quincy Police Department, Respondent worked in the W.A. Woodham Justice Center.

   
   

   The W.A. Woodham Justice Center is a public building that, during Respondent's employment, housed both the Gadsden County Sheriff's Office and the Quincy Police Department. At the time, the ground floor of the W.A. Woodham Justice Center was designated for the Gadsden County Sheriff's Office. The floor above the ground floor was designated for the Quincy Police Department.

6. Marketa Powell (Inmate Powell or Ms. Powell) was an inmate at the Gadsden County Jail during the months of June and July 2017. During that time, she held trustee status as an inmate and was assigned to work at the W.A. Woodham Justice Center.

7. Respondent did not know Inmate Powell prior to June 2017.

8. Respondent first came into contact with Inmate Powell in June 2017, at the W.A. Woodham Justice Center. When they met, Respondent struck up a conversation with Ms. Powell and gave her his personal cell phone number so that she could contact him. Respondent also met with Inmate Powell at the Gadsden County Jail during his personal time.

9. In June 2017, Respondent asked Inmate Powell to meet him in the men’s restroom on the ground floor of the

   W.A. Woodham Justice Center. Sometime later, Inmate Powell met Respondent in the men's restroom and performed oral sex on Respondent.

   
   

10. On a separate, later occasion that same month, Respondent again asked Inmate Powell to meet him in the men’s restroom of the W.A. Woodham Justice Center. Once again, Inmate Powell met Respondent in the men’s restroom. On that occasion, she and Respondent had sexual intercourse and Inmate Powell performed oral sex on Respondent.

11. Rachel McPherson, custodian at the W.A. Woodham Justice Center, was the supervisor in charge of Inmate Powell. Ms. McPherson witnessed Respondent fraternizing with Ms. Powell several times during June 2017.

12. One day in June 2017, while Ms. McPherson was searching for Inmate Powell, she saw Respondent between the men’s and women’s restrooms of the W.A. Woodham Justice Center. Ms. McPherson entered the men’s restroom and observed someone’s feet in a stall of the men’s restroom. Ms. McPherson called out, but the person in the stall failed to respond.

13. Ms. McPherson then exited the men’s restroom and asked Sheriff’s Assistant Betty Carter to watch the men’s restroom to see who exited. Ms. Carter's office was no more than 30 feet from the men’s restroom.

14. Later that day, Ms. Carter witnessed Inmate Powell exiting the men’s restroom.

15. The incident was reported and an internal investigation of Respondent was initiated.

    
    

16. During the internal investigation, Inmate Powell was initially reluctant to come forward and tell authorities about her sexual encounters with Respondent because of fear of further criminal penalties. However, Ms. Powell eventually admitted her contacts with Respondent and, during the final hearing, provided credible, clear, and convincing evidence that the encounters with Respondent in the men's restroom, while she was an inmate serving as a trustee at the W.A. Woodham Justice Center, had occurred.

17. Ms. Powell also provided credible testimony that Respondent also gave her money and visited her at the jail during his personal time.

18. During his internal affairs interview with Lieutenant Larry Gilyard, Respondent admitted that he met alone with Inmate Powell in a restroom at the W.A. Woodham Justice Center while he was employed by the Quincy Police Department.

19. As a result of the investigation, Respondent was dismissed from his employment with the Quincy Police Department on July 28, 2017.

20. After Ms. Powell’s release from incarceration, and while she was still on probation, Respondent maintained contact with her, engaged in sexual intercourse with her, and exchanged text messages.

21. While still on probation, Ms. Powell contacted Respondent and apologized to him for his losing his job.

    
    

    Respondent, through texts, admonished Ms. Powell stating, “what was the reason for saying it”; “you probably could have easily been like nothing happened”; and “you could have refused to give a . . . .” Not once in the pages of text messages did Respondent deny the allegations or say that Ms. Powell was being dishonest with the authorities.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. See §§ 120.569, 120.57(1), 120.60(5), and

    943.1395(8)(e), Fla. Stat.

    
    

23. Petitioner is responsible for prosecuting disciplinary cases against certified law enforcement officers. See §§ 943.12

    and 943.1395, Fla. Stat.

    
    

24. Petitioner, as the party asserting the affirmative in this proceeding, has the burden of proof. See, e.g., Balino v. Dep’t of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977). Because

    Petitioner is seeking to prove violations of a statute and impose administrative fines or other penalties, it has the burden to prove the allegations in the complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292

    (Fla. 1987).

    
    

25. Clear and convincing evidence:

    
    

    [r]equires that 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 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 Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

    
    

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

    
    

26. Disciplinary statutes, such as section 943.1395(7), are penal in nature, and must be construed against the authorization of discipline and in favor of the individual sought to be penalized. Munch v. Dep’t of Bus. & Prof’l Reg.,

    592 So. 2d 1136 (Fla. 1st DCA 1992). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel & Rest. Comm’n v. Sunny Seas No. One, 104 So. 2d

    570, 571 (1958).

    
    

27. In determining whether Petitioner has met its burden of proof, the evidence presented should be evaluated in light of the specific factual allegations in the administrative complaint. Disciplinary actions against licensees may only be based upon those offenses specifically alleged in the charging document. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d

    1108 (Fla. 1st DCA 2005).

    
    

28. The charging instrument in the instant case, the Administrative Complaint, charges Respondent with violating section 943.1395(7) and rule 11B-27.0011(4)(c). Section 943.1395(7) subjects a certified officer to discipline if the officer:

    Has not maintained good moral character, as defined in Rule 11B-27.0011(4)(c), Florida Administrative Code.

    
    

29. Failure to maintain good moral character is defined in relevant parts of rule 11B-27.0011(4)(c) as the perpetration by an officer of acts or conduct that constitute the following

offenses:

1. Having an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee. An unprofessional relationship is defined as:

   
   

   1. Having written or oral communication with an inmate, detainee, probationer or parolee, or community controlee that is intended to facilitate conduct prohibited by this rule section; or

      
      

   2. Engaging in physical contact not required in the performance of official duties, and is defined as kissing, fondling of the genital area, buttocks, or breasts, massaging or similar touching, holding hands, any other physical contact normally associated with the demonstration of affection or sexual misconduct as applied to all certifications, which is defined in section 944.35(3), F.S.

      
      

   3. Engaging in a romantic association with an inmate, detainee, probationer, parolee, or community controlee. “Romantic

      
      

      association” is defined as the exchange of telephone calls, pictures, letters, greeting cards, or any other form of oral or written communication, which expresses feelings or thoughts of affection or the desire to engage in a romantic relationship whether emotional or physical. This subsection shall not apply to an officer who is legally married to an inmate, detainee, probationer or parolee, or community controlee in the community, nor does it apply to any officer who has no knowledge, or reason to believe, that the person with whom the officer has engaged in a romantic association is an inmate, detainee, probationer or parolee, or community controlee.

      
      

   4. Engaging in oral, anal, or vaginal penetration by, or union with, the sexual organ of another person or engaging in anal or vaginal penetration by any other object while on duty, or at any time the officer is acting under the color of authority as a Commission-certified criminal justice officer, and not done for a bona fide medical purpose or in the lawful performance of the officer’s duty.

      
      

   5. Any overt, conspicuous, or public act of a sexual or simulated sexual nature which is likely to be observed by others.

1. Considering the evidence outlined in the Findings of Fact, above, it is concluded that Petitioner proved, by clear and convincing evidence, that Respondent violated section 943.1395(7) and rule 11B-27.0011(4)(c).

2. In accordance with section 943.1395(7), upon a finding that a certified officer has not maintained good moral character, an Order may be entered 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.

      
      

      Id.

      
      

3. Petitioner has established both aggravating and

   
   

   mitigating circumstances in rule 11B-27.005(6), which provides:

   
   

   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(2), F.S.

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

      13. The certified officer has not filed any answer to the Administrative Complaint or otherwise responded to the allegations of misconduct alleged by the Commission.

      
      

   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.

      
      

4. The position of officer is one of great public trust.

   
   

   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).

   
   

5. Respondent had a legal duty to have a good moral character in order to maintain his certification as a law enforcement officer. Respondent failed to maintain good moral character by engaging in oral sex and intercourse with an inmate trustee inside the men’s restroom at the W.A. Woodham Justice Center in violation of rule 11B-27.0011(4)(c).

6. Respondent’s unprofessional relationship with Inmate Powell began soon after their first encounter.

7. Respondent proceeded to engage in physical contact, not required for performance of official duties, with Inmate Powell.

8. In addition to the fact that Respondent’s impermissible conduct with Ms. Powell occurred while Respondent was on duty, it occurred multiple times in a public restroom of the W.A. Woodham Justice Center, a public building.

9. Further, after Respondent was separated from employment with the Quincy Police Department, Respondent continued his

   
   

   romantic association with Ms. Powell upon her release from custody and while she was still on probation.

10. Respondent offered no defense of his actions and, in fact, did not even show up for the hearing, which he had requested.

11. Therefore, based upon clear and convincing evidence, it is concluded that Respondent failed to maintain good moral character as required by section 943.13(7), in violation of section 943.1395(7) and rule 11B-27.0011(4)(c). Moreover, considering the severity of the conduct and that the conduct occurred on multiple occasions while Respondent was both on and off duty, it is found that aggravating factors are present, and there are no mitigating factors that would warrant deviating from the penalty of revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Department of Law Enforcement finding that Respondent failed to maintain good moral character as required by law and revoking Respondent’s law enforcement certification.

DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 25th day of March, 2019.

ENDNOTE

1/ All references to the Florida Statutes and Florida Administrative Code are to the current versions. Although there have been some changes, the applicable portions of the current laws and rules have not substantively changed since the time of the alleged incidents forming the basis of the administrative complaint against Respondent in this case.

COPIES FURNISHED:

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

Tallahassee, Florida 32302 (eServed)

Carl C. Brown (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: 18-005678PL

Orders for Case No: 18-005678PL