STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 19-0467PL

CHERAINE D. NELSON,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held by video teleconference between sites in Fort Myers and Tallahassee, Florida, on April 11, 2019, before Linzie F. Bogan, Administrative Law Judge of 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: Cheraine D. Nelson, pro se

(Address of Record) STATEMENT OF THE ISSUE

Whether Respondent, Cheraine D. Nelson (Respondent), failed to maintain good moral character required of correctional

officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

Petitioner, Florida Department of Law Enforcement (Petitioner), filed an Administrative Complaint before the Florida Criminal Justice Standards and Training Commission against Respondent, alleging violations by Respondent of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a).1/ On or about

August 16, 2018, Respondent timely filed an Election of Rights form disputing the allegations and requesting an administrative hearing. On January 25, 2019, Petitioner referred the case to the Division of Administrative Hearings (DOAH) for a disputed fact hearing.

During the disputed fact hearing, Petitioner offered the testimony of Rachel Moore and Sergeant Anna Horowitz. Respondent testified and called no other witnesses to testify on her behalf. Petitioner’s Exhibits 1 through 4 were admitted into evidence.

Respondent did not offer any exhibits into evidence.

A Transcript of the disputed fact hearing was filed with DOAH on April 25, 2019. Each party filed a proposed recommended order, and the same have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Background

   
   

   1. On September 15, 2015, Respondent was certified by the State of Florida, Criminal Justice Standards and Training Commission, as a correctional officer. Respondent’s Correction Certification number is 327096.

   2. Respondent is the state agency responsible for enforcing standards applicable to correctional officer certificates, pursuant to section 943.12 and chapter 120, Florida Statutes.

   3. The incident which provides the basis for the instant action occurred on February 10, 2017. At the time of the incident, Respondent was employed by Moore Haven Correctional Facility.

   4. Respondent is a military veteran, having served eight years of active duty with the United States Army. Respondent exited the military soon after the birth of her son, C.P., who is her only child.

   5. Respondent was 34 years of age and C.P. was seven years of age at the time of “the incident” that provides the basis for the instant action.

   6. Respondent is the custodial parent of C.P., and, at all times material to the instant matter, raised C.P. with minimal assistance from C.P.’s biological father. Respondent describes herself as a single parent.

      
      

   7. At all times material hereto, Respondent held Associate of Arts degrees in criminal justice and radiological science. Respondent testified that she is four classes shy of completing the requirements necessary to obtain a bachelor’s degree in criminal justice.

   8. Respondent, when the incident involving C.P. occurred, was employed as a correctional officer at the Moore Haven Correctional facility. Respondent was assigned to the morning shift, which began at 7:00 a.m. and ended at 7:00 p.m. Respondent would occasionally work mandatory overtime, which required her to extend her regular 12-hour shift by four hours. Respondent’s travel time to and from the correctional facility added an additional three hours to her work day.

2. The Incident

   
   

   1. During the course of the 2016-2017 school year, C.P. regularly misbehaved while at school, and as a consequence thereof, Respondent had numerous discussions with school officials regarding appropriate strategies for minimizing the disruption to the learning environment resulting from C.P.’s behavior. It is fair to say that Respondent’s relationship with school officials was, at best, acrimonious, and that Respondent and C.P.’s teachers were frustrated with C.P.’s classroom behavior.

      
      

   2. On the morning of February 10, 2017, Respondent, prior to leaving for work, found in C.P.’s backpack a letter from his school advising that C.P. was again misbehaving in the classroom. It is inferred from the evidence that Respondent had no knowledge of the letter prior to discovering the same in C.P.’s backpack.

   3. According to Respondent, after reading the letter, she became upset at her son for again “getting in trouble at school,” and she “let [her] emotions take over.” While in this state of heightened emotional agitation, Respondent grabbed a belt and struck C.P. several times about his body. Respondent admits that on the morning of February 10, 2017, she struck C.P. five to seven times with a belt, and that her actions were excessive.

   4. Soon after striking C.P. with the belt, Respondent sent

      
      

      C.P. to school where officials noticed bruising over several areas of his body. Per protocol, school officials contacted child protective services, who in turn interviewed C.P. and photographed the bruises on his body.

   5. The photographs of C.P.’s injuries were received into evidence as Petitioner’s composite Exhibit 1, photographs 1 through 7. Photograph 1 depicts bruises to the left side of C.P.’s face and head.2/ Photographs 2 and 3 depict bruises to the inside forearm area of C.P.’s right arm. Photograph 4 shows, from a different angle, the bruises depicted in photograph 1. Photograph 5 depicts bruises to the inside area of C.P.’s right

      
      

      leg. Photograph 6 does not clearly identify the body part depicted, but the photograph does clearly depict the presence of a bruise. Photograph 7 depicts bruises to the lower thigh and upper calf area of the backside of C.P.’s right leg.

   6. The photographs depicting C.P.’s bruises capture all physical injuries sustained by C.P. as a result of Respondent’s actions on February 10, 2017. Respondent admits that the photographs accurately depict the injuries to C.P., which resulted from her striking C.P. with a belt.

   7. C.P. is a child of light complexion, and the bruises to his body, as reflected in the photographs, were, in most instances, easily discernable.

   8. Based on her conduct with respect to C.P., Respondent, on or about February 10, 2017, was arrested and charged with “child abuse without great harm” in violation of section 827.03, Florida Statutes (2016). Section 827.03(2)(c) provides that a person commits a third-degree felony when “knowingly or willfully abuse[ing] a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child.” It is undisputed that Respondent entered into, and successfully completed, a pretrial diversion program in lieu of prosecution.

   9. The Administrative Complaint alleges that “[o]n or about February 10, 2017, the Respondent, Cheraine D. Nelson, did unlawfully and intentionally inflict physical or mental injury

      
      

      upon C.P., a child under the age of eighteen, without causing great bodily harm, permanent disability, or permanent disgifurement [sic], to wit: struck the victim on his arms, legs, face, and head.” The evidence establishes that Respondent unlawfully and intentionally inflicted physical injury upon C.P. as alleged in paragraph 2 of the Administrative Complaint.3/

3. The Aftermath

1. In reviewing the record, it reasonably appears as though Respondent was released from jail a few hours after she was arrested. As a consequence of Respondent’s actions, C.P. was sheltered with the Department of Children and Families (DCF), which, in turn, placed the child with a friend of Respondent’s.

2. The day after Respondent was released from jail, it is undisputed that she enrolled in, and eventually completed, an on- line parenting class. In this regard, Respondent credibly testified as follows:

   A: Yes. Before I even –- when I was released from the jail the next – the day after, I took it upon myself to enroll into classes.

   
   

   Q: What kind of classes?

   
   

   A: I enrolled into a parenting class, because I felt like what I did was wrong and I knew like that something needed to be done to me as a parent. I’ve never been a parent, and at the time I think my son was like eight.

   
   

   And I called my mom and she’s like, “you need to figure this out, because you’ve been doing this by yourself.”

   
   

   So I went online and I just started looking at

   –- Googling things parents do to help them parent as single mothers.

   So I went to the David Lawrence Center and I enrolled into a parenting class. And I did that, I completed the class.

   
   

3. As a result of her actions towards C.P., Respondent was required by DCF to enroll in an approved parenting and anger management class. Respondent successfully completed both classes. Respondent was also ordered to undergo psychological testing, which she did.

4. C.P. was sheltered by DCF for a period of about two months. The undisputed evidence establishes that DCF allowed Respondent to have unsupervised visits with C.P. after one month, and returned C.P. to Respondent after two months.

5. In explaining how this experience impacted her as a parent, Respondent credibly testified as follows:

   I did everything that I felt that I needed to do to fix my -- the situation I’m in. I have grown a lot from that. And that this whole situation has made me just a better person, as a mom, as a woman. And I look at things differently now when –- when it comes to my child, as far as when he –- if he’s having behavior issues or any type of issues, whether at home or at school, so I changed a lot of things.

   
   

   I don’t let the little things get me upset. I talk to my son a lot more, now that he’s older, and I just –- we do punishment differently. And I take a lot of things away from him rather than do what I did before.

   
   

   CONCLUSIONS OF LAW

   
   

6. DOAH 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.

   
   

7. Petitioner is responsible for prosecuting disciplinary cases against certified correctional officers. See §§ 943.12 and

   943.1395, Fla. Stat.

   
   

8. 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).

   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)).

   
   

9. 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).

   
   

10. 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).

    
    

11. The charging instrument in the instant case, the Administrative Complaint, charges Respondent with violating section 943.1395(7) and rule 11B-27.0011(4)(a). 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)(a).

12. Failure to maintain good moral character is defined in rule 11B-27.0011(4)(a) as “the perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.”

    
    

13. 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)(a).

14. 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.

       
       

15. Petitioner has established both aggravating and mitigating circumstances found 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.

       
       

16. Respondent’s violation of the standard of “good moral character” is aggravated by the fact that the conduct engaged in was an act of domestic violence committed against a child of

    
    

    tender years. This aggravating factor is tempered, however, by the fact that Respondent’s physical aggression towards her child thankfully did not result in either great bodily harm or mental injury.

17. Respondent’s violation of the standard of “good moral character” is mitigated by the fact that at the time of the underlying incident, she was employed as a correctional officer at the Moore Haven Correctional Facility. Respondent’s violation of the standard of “good moral character” is also mitigated by the fact that Respondent recognized that her parenting skills were deficient and immediately, following her release from jail, took it upon herself to voluntarily enroll in a parenting course. As a result of the voluntary parenting course, and the successful completion of the court-imposed anger management and parenting classes respectively, Respondent now understands how to discipline her child in an appropriate way. Respondent is credited for these rehabilitative efforts.

18. Petitioner, in the Administrative Complaint, prays only “that any appropriate penalty . . . should be imposed,” and makes no affirmative assertion that the only appropriate penalty herein is that of revocation. Rule 11B-27.005(5) provides that “[w]hen 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”:

    Child abuse (section 827.03, F.S.) – Prospective suspension to revocation

    
    

19. By providing for a range of disciplinary alternatives with respect to violations predicated on “child abuse,” the Commission recognizes that section 827.03 provides for varying degrees of such abuse (e.g., “aggravated child abuse” - 1st degree

    felony, and “child abuse” - 3rd degree felony). As previously noted, the Administrative Complaint herein charges Respondent with inflicting physical injury upon C.P. “without causing great bodily harm, permanent disability, or permanent disfigurement,” which is the equivalent of the lesser felony of “child abuse.”

20. Considering the aggravating and mitigating factors present herein and the range of disciplinary options provided by rule 11B-27.005, the penalty of revocation of Respondent’s certification as a correctional officer is not supported by the evidence and would therefore be excessive and inappropriate.

21. Rule 11B-27.005(7)(d) provides that in instances of suspension, the suspension of certification and the privilege of employment as an officer shall be “for a period not to exceed two years.” The suspension of Respondent’s certification as a correctional officer is supported by the evidence and is appropriate.

    
    

22. Respondent had a legal duty to have a good moral character in order to maintain her certification as a correctional officer. Respondent failed to maintain good moral character by committing an act of child abuse against her son, C.P. in violation of rule 11B-27.0011(4)(a).

23. 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)(a). Considering the aggravating and mitigating factors present herein, a prospective suspension of seven months is warranted and supported by the evidence.4/

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 prospectively suspending Respondent’s correctional officer certification for a period of seven months.

DONE AND ENTERED this 23rd day of May, 2019, in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

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 23rd day of May, 2019.

ENDNOTES

1/ All references to the Florida Statutes and Florida Administrative Code are to the current versions, unless otherwise indicated. 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 filed herein.

2/ Respondent explained that as a result of C.P. thrashing about, she inadvertently struck him on the head with the belt.

3/ There is no evidence that C.P. sustained a “mental injury.” Section 827.03(1)(d) defines mental injury to mean “injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior as supported by expert testimony.” In the supplemental narrative report prepared by Sgt. Horowitz, it is mentioned that CPT medical director, Dr. Barbara Rumberger, “concludes positive findings for mental abuse injury for ordering the child to lie about the abuse and the incident that occurred today.” Within the context of the narrative report, Dr. Rumberger’s statement is hearsay and has no probative value. Additionally, Dr.

Rumberger’s statement regarding C.P.’s alleged mental status does

not, without more, meet the statutory definition of “mental injury.” Finally, and perhaps most importantly, the Administrative Complaint does not allege that C.P. sustained a mental injury by allegedly being required to “lie” about the underlying physical abuse.

4/ The most credible evidence indicates that Respondent struck

C.P. from five to seven times with a belt. This evidence is consistent with the photographs depicting C.P.’s bruises. The suspension period of seven months represents a month for each instance on February 10, 2017, when Respondent struck C.P. with a belt.

COPIES FURNISHED:

Cheraine D. Nelson

(Address of Record-eServed)

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

Tallahassee, Florida 32302 (eServed)

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: 19-000467PL

Orders for Case No: 19-000467PL