v. Case No. 19-1598PL
SONYA C. HERNANDEZ,
This case was heard on May 29, 2019, by video teleconference at sites in Tallahassee, Florida and Jacksonville, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Respondent: Sonya C. Hernandez, pro se
Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent
appropriate penalty.
On March 6, 2019, the Criminal Justice Standards and Training Commission (Commission) filed an Amended Administrative Complaint, Case No. 41671, against Respondent which alleged that on or about February 28, 2019, Respondent conspired to introduce into or possess upon the grounds of Hamilton County Jail, or give to or receive from any inmate of said facility, or take or attempt to take or send therefrom, food, and/or clothing, an article or thing declared to be contraband pursuant to section 951.22(1).
On September 26, 2018,1/ Respondent executed an Election of Rights by which she disputed the facts alleged in the Administrative Complaint, argued a “lack of any act in furtherance of the offense conspired,” and requested a formal administrative hearing.
On March 25, 2019, Petitioner referred the Amended Administrative Complaint and the Election of Rights to the Division of Administrative Hearings. The referral was accompanied by Petitioner’s Motion to Relinquish Jurisdiction, which was based in large part on Petitioner’s responses to
18 requests for admissions. As explained at the commencement of the hearing, the motion was not taken up earlier due to a
misunderstanding on the part of the undersigned as to the procedural posture of the motion.
On April 29, 2019, the Commission filed a second Amended Administrative Complaint by which it sought to amend its March 6, 2019, Amended Administrative Complaint by adding that Respondent conspired to take a “phone” along with “food and/or clothing” to the Hamilton County Jail. An Order to Show Cause was entered directing Respondent to show cause why the second Amended Administrative Complaint should not be accepted as establishing the allegations for disposition. No objection was filed, and this case will proceed on the allegations set forth in the second Amended Administrative Complaint.
The hearing was held on May 29, 2019, as scheduled. The Motion to Relinquish Jurisdiction was taken up at that time. Requests for Admissions 1 through 17 were accepted as having been admitted. Request for Admission 18 was determined to call for a degree of sophistication regarding nuances of law relating to criminal acts of “conspiracy” as to be beyond the understanding of a pro se litigant. Since the admission called for essentially legal conclusions more appropriately the province of the undersigned, Request for Admission 18 was not accepted, and the Motion to Relinquish Jurisdiction was denied.
At the final hearing, Petitioner presented the testimony of Captain Cornelius Bennett, with the Hamilton County Sheriff’s
Office and the jail administrator for the Hamilton County Jail; and Lieutenant Anthony Rickerson, who was, at all times relevant to this proceeding, a sergeant with the City of Jasper Police Department. Petitioner’s Exhibit A, a CD with sub-exhibit 1, consisting of audio recordings of telephone calls between Respondent and Derrick Harris, who was in custody at the Hamilton County Jail; sub-exhibit 2, consisting of a video recording of an investigatory interview of Respondent by Sergeant Rickerson; and sub-exhibit 4, consisting of a memorandum authored by Sergeant Rickerson, was received in evidence. Petitioner’s Exhibit A,
sub-exhibit 3 was not received in evidence. Respondent testified on her own behalf. Respondent’s Exhibits 1 and 2 were received into evidence.
A one-volume Transcript of the proceedings was filed on June 12, 2019. Respondent filed a letter on June 4, 2019, indicating that she had testified to everything she had to say, and was leaving this matter “up to justice.” Petitioner timely filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order.
This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline.
See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d 441 (Fla. 5th
DCA 2013). The acts that form the basis for this proceeding
occurred on or immediately prior to February 28, 2017. Thus, references to statutes are to Florida Statutes (2016), and references to rules are to those in effect on that date unless
otherwise noted.
Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications.
At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014.
On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent
acknowledged at the hearing that her responses were accurate.
As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted.
Respondent has not previously been the subject of any disciplinary action.
On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris.
On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida.
On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and
50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes.
Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash
bond to get him released, and getting money put on the phone so he could make calls from the jail.
During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that
Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call,
Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again.
Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted.
Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in
this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to
Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so.
Captain Bennett established that the Hamilton County Jail has:
standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks,
T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir.
Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge.
During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge.
Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge.
In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.”
At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim):
Would i be able to bring him some soap and deodorant and something to eat in there
If they gonna pick him up for transport will i be able to see him before he go?
Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed.
Respondent gathered some items, including boxers,
t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles.
There was no evidence that Respondent attempted to conceal the noodles.
Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to
Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Standards
Section 943.13(7) provides that any person employed or appointed as a law enforcement officer shall “[h]ave a good moral character as determined by a background investigation under procedures established by the commission.”
Florida Administrative Code Rule 11B-27.0011(4)(a) provides, in pertinent part, that “a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as: (a) The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.”
Section 951.22(1) provides that
It is unlawful, except through regular channels as duly authorized by the sheriff or officer in charge, to introduce into or possess upon the grounds of any county detention facility . . . or to give to or receive from any inmate of any such facility wherever said inmate is located at the time or to take or to attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: . . . ; any article of food or clothing . . . .
Section 951.22(2) makes a violation of section 951.22(1) a felony of the third degree.
Section 943.1395(7) provides that:
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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training, or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Burden of Proof
The second Amended Administrative Complaint charges Respondent with violating section 943.1395(7), and rule 11B- 27.0011(4)(a), on the ground that Respondent “did conspire to introduce into or possess upon the grounds of Hamilton County Jail, or give to or receive from any inmate of said facility, or take or attempt to take or send therefrom, food and/or clothing, and/or phone, an article or thing declared to be contraband pursuant to section 951.22(1).”
Petitioner bears the burden of proving the specific allegations of fact that support the charges alleged in the second Amended Administrative Complaint by clear and convincing evidence. § 120.57(1)(j), Fla. Stat.; Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932
(Fla. 1996); see also, Ferris v. Turlington, 510 So. 2d 292 (Fla.
1987); Fox v. Dep’t of Health, 994 So. 2d 416 (Fla. 1st DCA
2008); Kany v. Fla. Eng'rs Mgmt. Corp., 948 So. 2d 948 (Fla. 5th
DCA 2007); Dieguez v. Dep’t of Law Enf., Crim. Just. Stds. & Training Comm’n, 947 So. 2d 591 (Fla. 3d DCA 2007); Pou v. Dep’t
of Ins. & Treas., 707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires 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). The clear and convincing evidence level
of proof
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.
Clear and convincing evidence requires that 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, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla.
2005). "Although [the clear and convincing] standard of proof may be met where the evidence is in conflict, it seems to
preclude evidence that is ambiguous." Westinghouse Elec. Corp.,
Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel.
Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491
(Fla. 1973). Penal statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden the application of such statutes. Thus, the provisions of law upon which this disciplinary action has been brought must be strictly construed, with any ambiguity construed against Petitioner. Elmariah v. Dep’t of Bus. & Prof’l Reg.,
574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.
Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931 (Fla. 1st
DCA 2011); Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100
(Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins., 680 So. 2d 528,
531 (Fla. 1st DCA 1996); Dyer v. Dep’t of Ins. & Treas., 585 So.
2d 1009, 1013 (Fla. 1st DCA 1991).
The allegations of fact set forth in the Amended Administrative Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of Health, 908 So.
2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the
scope of this proceeding is properly restricted to those matters
as framed by Petitioner, i.e., that Respondent conspired to violate section 951.22(1), and that the conspiracy to do so demonstrates that Respondent “has not maintained good moral character, the definition of which has been adopted by rule.” M.H. v. Dep’t of Child. & Fam. Servs., 977 So. 2d 755, 763
(Fla. 2d DCA 2008).
The Offense
The second Amended Administrative Complaint charged Respondent with conspiring to violate section 951.22(1).
A violation of section 951.22(1) is a felony of the third degree.
Petitioner correctly notes in its Proposed Recommended Order that the offense of criminal conspiracy is governed by section 777.04(3), Florida Statutes, which provides that:
A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy, ranked for purposes of sentencing as provided in subsection (4).
Section 777.04(4), regarding the offense of criminal conspiracy, provides that:
(4) Except as otherwise provided . . . , the offense of . . . criminal conspiracy is ranked for purposes of sentencing under chapter 921 and determining incentive gain- time eligibility under chapter 944 one level below the ranking under s. 921.0022 or
s. 921.0023 of the offense attempted, solicited, or conspired to . . . .
* * *
Except as otherwise provided . . . , if the offense attempted, solicited, or conspired to is a:
* * *
3. Felony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under s. 921.0022 or s. 921.0023,
the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the third degree . . . .
Except as otherwise provided in . . .
paragraph (d), if the offense attempted, solicited, or conspired to is a felony of the third degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
A violation of section 951.22(1) is a level 6 felony of the third degree listed as one of the “exceptions” to a lower “conspiracy” ranking. § 921.0022(3)(f), Fla. Stat. Thus, a conspiracy to commit a violation of section 951.22(1) is not eligible to be lowered to a misdemeanor of the first degree. §§ 777.04(4)(d) and 921.0022(3)(f), Fla. Stat.3/
As a result of the foregoing, the conspiracy to violate section 921.22(1), as charged in the second Amended Administrative Complaint, is, pursuant to section 777.04(4)(e), a felony of the third degree.
Petitioner correctly notes that Florida Standard Jury Instruction (FSJI) 5.3 sets out the elements that must be proven
to establish the crime of criminal conspiracy under section 777.04(3). The first element of the crime of criminal conspiracy established in FSJI 5.3 is that “The intent of (defendant) was that the offense of (object of conspiracy) would be committed.” The second element of the crime of criminal conspiracy established in FSJI 5.3 is that there be an agreement that the object of the conspiracy be committed. “Both an agreement and an intention to commit an offense are necessary elements of this crime.” Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d
DCA 1979).
The evidence in this case, including Respondent’s unrefuted and credible testimony, establishes that, despite a brief instance of idle chatter about Arby’s and a cell phone over the course of several hours of in-person and telephonic communication, Respondent had no intent to actually commit the offense alleged. Furthermore, the evidence establishes that there was never an agreement that Respondent would commit the offense. Therefore, under the substantive standards applicable to a conspiracy to violate section 951.22(1), Petitioner failed to prove either of the essential elements of the crime and, thus, failed to prove the violation alleged.
Furthermore, section 777.04(5)(a) provides that:
It is a defense to a charge of . . . criminal conspiracy that, under circumstances manifesting a complete and voluntary
renunciation of his or her criminal purpose, the defendant:
(a) Abandoned his or her attempt to commit the offense . . . .
Under the facts and circumstances of this case, the evidence firmly established that, even if the thought of bringing Arby’s or a cell phone to Mr. Harris fleetingly crossed their minds, Respondent and Mr. Harris completely abandoned that thought within roughly 90 seconds of the topic first being raised.
For the reasons set forth herein, Respondent did not engage in a conspiracy to violate section 951.22(1) with regard to Arby’s or a cell phone. Petitioner, therefore, failed to establish a violation of section 943.13(7) and rule 11B- 27.0011(4)(a) as to those items.
Finally, if Petitioner is suggesting that Respondent’s act of bringing clothes, hygiene items, and ramen noodles to the jail was a direct violation of section 951.22(1), Petitioner failed to establish that such items were not received by the on- duty correctional officer “through regular channels as duly authorized by the sheriff or officer in charge.”
As to the clothes and hygiene articles, including soap and deodorant, those were specifically allowed either through the direct communication from Captain Bennett, or by the Sheriff’s “standing policy” for the jail. Those items were, therefore,
brought by Respondent “through regular channels as duly authorized by the sheriff or officer in charge.”
As to the ramen noodles, Petitioner emailed Captain Bennett to ascertain whether she could bring something for
Mr. Harris to eat. The response received was confusing, though the most logical conclusion to be drawn from the response is that food would be allowed, “if the bond isn’t posted.” Nonetheless, Respondent made no effort to introduce the ramen noodles into any area of the jail beyond the main receiving area, and made no attempt to give them to Mr. Harris. Rather, she delivered the ramen noodles to the correctional officer in charge in order to ascertain from the correctional officer whether they were contraband or, as was the case with clothing, whether there was a dispensation for inmates who did not yet have commissary privileges.
The Commission has determined, in a case cited favorably in Petitioner’s Proposed Recommended Order, that:
“‘Moral character’ . . . [is] not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.” Zemour, Inc. v. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement or correctional officer demonstrates a lack of “good moral character” when he or she engages in “acts and conduct which would cause a
reasonable man to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation.” Fla. Bd. of Bar Examiners Re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978).
Crim. Just. Stds. & Training Comm’n v. Shacoyia McPhee, DOAH Case
No. 08-1626PL (Fla. DOAH July 28, 2008; Fla. CJSTC Aug. 12, 2008)
Under the circumstances described herein, the delivery of ramen noodles to the correctional officer in charge, with no evidence of any intent to deliver them to Mr. Harris without the approval of the correctional officer, simply cannot be construed as “failure to maintain good moral character” as described above.
Conclusions
The evidence establishes that there was no actual intent on the part of Respondent to introduce Arby’s food or a cell phone onto the grounds of the Hamilton County Jail, or to provide either of them to Mr. Harris, and no agreement by either Respondent or Mr. Harris that she do so. Thus, under the substantive standards applicable to a conspiracy to violate section 951.22(1), Petitioner failed to prove the essential elements of the crime.4/
The evidence establishes that any “conspiracy” created by the mention of Arby’s and a cell phone during the course of idle chatter between Respondent and Mr. Harris was almost instantaneously abandoned, never to be brought up again. Thus, a
defense to the alleged crime of conspiracy exists pursuant to section 777.04(5)(a).
The act of bringing soap and deodorant to Mr. Harris was specifically authorized by Captain Bennett, the jail administrator.
The act of bringing underwear, socks, t-shirts, boxers, soap, deodorant, and hygiene items to Mr. Harris was authorized by a standing policy of the Hamilton County Jail as per the Sheriff of Hamilton County.
The act of delivering ramen noodles to the correctional officer in charge of the jail in order to allow the correctional officer to determine if they could be delivered to an inmate without commissary privileges (as reasonably implied by Captain Bennett’s reply to Respondent’s direct message), simply does not come close to showing a “lack of good moral character” as described in McPhee. Such would not cause a reasonable person to
have substantial doubts about Respondent’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation.
Under the applicable burden and the quantum of proof necessary to establish the violations specifically pled in the second Amended Administrative Complaint, Petitioner failed to substantiate that Respondent lacked good moral character, or otherwise engaged in wrongdoing warranting disciplinary action.
Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint.
DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2019.
1/ Though not in the record, it is clear that an Administrative Complaint was entered by the Commission prior to September 26, 2018, which precipitated Respondent’s Election of Rights. The original Administrative Complaint is not in the record. However, it must have alleged a conspiracy to violate section 951.22(1), as did the subsequent iterations, since Respondent’s dispute centered on her defense to the charged conspiracy. Then, on March 6, 2019, before the case was referred to DOAH, the Amended Administrative Complaint was entered. The only way for the Commission to have then referred the matter to DOAH is if it treated the original Election of Rights as being applicable to the Amended Administrative Complaint.
2/ The first call was for a complimentary one minute. The next seven calls each had about 15 minutes of actual discussion, and
the final call, immediately before Mr. Harris’ transfer to Jacksonville, was about four minutes of actual discussion.
3/ The description of the offense in section 921.0022(3)(f) is “Intoxicating drug, firearm, or weapon introduced into county facility.” It is strange to think that the Legislature intended for ramen noodles to be in the same class as those listed items. Nonetheless, section 921.0022(2) provides, in pertinent part, that:
For purposes of determining which felony offenses are specifically listed in the offense severity ranking chart and which severity level has been assigned to each of these offenses, the numerical statutory references in the left column of the chart and the felony degree designations in the middle column of the chart are controlling; the language in the right column of the chart is provided solely for descriptive purposes.
Thus, as incongruous as it seems, ramen noodles must remain in the same class as drugs, liquor, guns, and weapons for purposes of section 951.22(1).
4/ There was, of course, no evidence whatsoever that Respondent actually introduced Arby’s or a cell phone onto the grounds of the jail, or either gave, or attempted to take, Arby’s or a cell phone to Mr. Harris.
Sonya C. Hernandez
Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489
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.
