The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a), and if so, what penalty should be imposed.
Findings Of Fact The Department?s Case Respondent is a certified corrections officer in the State of Florida, to whom Petitioner has issued certificate number 249713. On or about April 9, 2011, at approximately 2:00 a.m., Officer George Dodson of the Cottondale Police Department responded to a disturbance call at the Cottondale Villas at 3111 Willow Street in Cottondale, Florida. Officer Dodson found a group of people in the parking lot, including Respondent. There was a large amount of blood on the ground. Ms. Bradie had a cut on her hand that was wrapped in a cloth, and denied knowing how her hand was cut. Officer Dodson spoke to several people at the location, and the consensus was that Ms. Bradie had cut Mr. Marques White with a box cutter. None of the people with whom he spoke testified at hearing. No box cutters were found at the scene. Mr. White was not present at the scene. He returned at approximately 4:00 a.m., but was still bleeding and could not really speak. Officer Dodson did not take statements from anyone at the scene because, other than Ms. Bradie, all of them appeared to be intoxicated. He did recall Ms. Bradie saying she was struck in the face, but does not recall her face being swollen. The next day, Officer Dodson learned that Mr. White had returned to the hospital because of his injuries, which were serious. Pictures taken of Mr. White show a scar on his lip and arm, and a scar resulting from the performance of a tracheotomy. However, there is no evidence to indicate whether Mr. White had any of these scars prior to the incident, or that all of the injuries evidenced by the scars occurred as a result of Respondent?s actions. Officer Dodson was able to interview Mr. White on April 15, 2011, and a witness statement/affidavit was prepared on April 17, 2011. The statement of Mr. White is hearsay, and he did not testify. On April 15, 2011, Officer Johnson filed an affidavit/complaint and application for warrant against Ms. Bradie for aggravated battery. An information filed June 15, 2011, charged her with aggravated battery in violation of section 784.045(1)(a)1., Florida Statutes, a second-degree felony. A warrant for Ms. Bradie?s arrest was issued that same day. Ms. Bradie resigned her position at the Jackson Correctional Institution on June 27, 2011. Ms. Bradie entered a pretrial intervention program, and the charges against her were nolle prossed on February 25, 2013. Richard Johnson is an assistant warden at the Charlotte Correctional Institution. In April of 2011, he worked in the Inspector General?s Office at the Florida Department of Law Enforcement. Mr. Johnson investigated an administrative case against Respondent stemming from the April 2011 incident. He spoke to Mr. White, and recorded an interview with him. He did not speak with Ms. Bradie. In sum, Petitioner proved that on April 9, 2011, Respondent was present at an altercation at the Cottondale Villas. She had a cut on her hand, and there was a large amount of blood on the pavement. All of the other people present smelled of alcohol or admitted to drinking. Petitioner presented no testimony from anyone who was present during the altercation to describe the events leading to the charges against Respondent. Further, Petitioner presented no competent evidence regarding the item allegedly used to cut Mr. White, as there was no evidence regarding the discovery of any item found at the scene. Respondent?s Story Ms. Bradie testified on her own behalf. She is the only person who testified that was present during the altercation. She testified that she went to Cottondale Villas to pick up her child from her mother, who cared for the child while Ms. Bradie was at work. When she was leaving her mother?s apartment, she heard her brother, Lesidney, outside arguing with Marques White. According to Ms. Bradie, she put her baby in the car and told her brother to go inside, because Marques White was “not worth it.” This apparently angered Mr. White, who started arguing with her. Ms. Bradie?s mother came out of the apartment and tried to break up the argument. Mr. White swung around her mother in order to try to hit Lesidney, and continued arguing with both Ms. Bradie and her brother. A bystander, Marcus Bellamy, pulled Lesidney away from the argument. At that point, Marques White jumped on Ms. Bradie and started hitting her in the face. Ms. Bradie is five feet, one-inch tall. She testified that Mr. White had pushed her down to the ground. While she was close to the ground, she picked something up off the pavement and started swinging to try and get him off of her. While she believes she probably cut him in her effort to get free, she could not identify the object she picked up (which was never located) or say that all of his injuries were a result of her actions. There is no evidence that she deliberately tried to cut him at all, much less that she meant to cut his face. Ms. Bradie?s account of the events is the only evidence from a witness who was actually present at the scene, and her testimony was credible. The most persuasive and compelling testimony presented is that Ms. Bradie acted in self-defense. No evidence was present to rebut her testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of February, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2014. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ashley Bradie (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on June 4, 1985, and was issued certificate number 32-85-502-02. The certificate has remained current through the present. Respondent served as a correctional officer for the Highlands County Sheriff's Office for about seven years, until he resigned shortly after the incident described below. At the time of this resignation, he was a corporal. Throughout his employment with the Highlands County Sheriffs Office, Respondent has been a model correctional officer. Unlike some correctional officers at the County jail, Respondent is not overbearing with the inmates, but frequently finds the time to try to help them with their problems. He does not swear publicly or privately. He is 5' 9" and weighs 185 pounds. In late December, 1991, a large number of inmates were housed in the Highlands County jail. The juvenile cellblock in particular was at capacity, and there was no place to isolate individual juvenile inmates from other juvenile inmates. At the time, the juvenile cellblock contained four juveniles: E. M., O. M., C. S., and C. L. Except for C. S., the juveniles are all between 5' 7" and 5' 9" and 140-150 pounds. C.S. stands 6' 2" and weighs about 200 pounds. Except for C. L., the juveniles had been causing trouble in the cellblock. They had flooded the cellblock, destroyed a television, and engaged in other disruptive behavior. E. M. and O. M. had also been threatening to rape and batter C. L., who is intellectually challenged and physically vulnerable to the other juveniles. After receiving reports of the threats, Respondent ordered that E. M., O. M., and C. S. be brought downstairs from their cellblock to the booking office where Respondent worked. A correctional officer brought the juveniles to Respondent and lined them up near a wall. Respondent questioned the juveniles in the hallway in the booking office. This is a crowded, busy area. He questioned them in the presence of the correctional officer who had brought the juveniles down and within a few feet of several other correctional officers and other employees of the Highlands County Sheriffs Office. Respondent was unaware that C. S. had played no role in threatening C. L. Respondent's questioning of C. S. was uneventful. In questioning O. M. and E. M., however, Respondent was unable to communicate to them the importance of good behavior in the cellblock. Reasonably fearing that the juveniles might carry out their threats to injure C. L., Respondent became more insistent that they behave themselves. Instead of indicating a willingness to obey Respondent's orders not to harm the other juvenile, O. M. and E. M. defiantly leaned into Respondent's face, clearly conveying their rejection of his demand for their cooperation. When O. M. tried to walk by Respondent, Respondent, who is right-handed, lightly tapped O. M. in the side of his head so as to cause him to remain where Respondent could address him. There is insubstantial evidence that Respondent also touched E. M. However, even if he did touch E. M. to get his attention, Respondent did so in an even lighter fashion than he touched O. M. Without further physical contact, Respondent, now in a louder tone, emphasized that he wanted the juveniles to behave and demanded that they not bother C. L. again. Neither O. M. nor E. M. was in any way injured by any physical contact with Respondent. Any physical contact on Respondent's part never threatened physical or emotional harm to O. M. or E. M. Sometime after the above-described incident, following an investigation, the Highlands County Sheriffs Office allowed Respondent to resign rather than face termination. Respondent resigned rather than contest the matter.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. ENTERED on November 22, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on November 22, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3381 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7: rejected as unsupported by the appropriate weight of the evidence. 8: rejected as irrelevant. The relevant behavior of the juveniles is described in the order. 9: adopted or adopted in substance. 10: rejected as irrelevant. 11: rejected as irrelevant and subordinate. The only apology from Respondent pertained to his becoming agitated orally--not physically. 12: rejected as irrelevant. COPIES FURNISHED: A. Leon Lowry, II Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dawn P. Whitehurst, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Attorney Linda Rodriguez-Torrent 3750 US 27 North, Suite 12 Sebring, Florida 33870
Findings Of Fact The Respondent, William H. Cochran, was certified by the Petitioner as a correctional officer on November 20, 1989, and was issued corrections certificate number 33-89-502-05, and at all times relevant hereto was a certified officer. The Respondent was employed as a Correctional Officer I officer by the Department of Corrections, and assigned to the Charlotte Correctional Institution, a state correctional institution, in Port Charlotte, Florida. On or about February 17, 1990, the Respondent approached Ruth Rivera- Silva, another Correctional Officer I at the Charlotte County Correctional Institution, and engaged her in conversation. The Respondent initiated the conversation with casual, small talk, and then presented Officer Rivera-Silva with a business proposition. Officer Rivera-Silva and the Respondent knew each other, because they had gone through the academy together. The business proposition the Respondent made to Officer Rivera-Silva consisted of her assisting him in bringing marijuana into the Charlotte Correctional Institute for sale to inmates. The Respondent expressed a need for extra money for himself, and he wanted to help her obtain some extra money, because she was a divorced mother with two children. The Respondent had been approached by inmates Smith and Bass who requested his help in bringing marijuana into the institution to them. According to the Respondent's plan, he was supposed to meet with one of the inmate's friends and pick up the marijuana from her. The Respondent would then give the drugs to Officer Rivera-Silva, and she would bring in approximately two pounds of marijuana a week by carrying the marijuana into the institution in her lunch box. Respondent indicated that no one ever checked the contents of the lunch boxes. The lunch boxes were to be dropped off in the recreation department for inmates Smith and Bass to pick up. The Respondent speculated that he and Officer Rivera-Silva would each make approximately one thousand dollars per week. After the Respondent initially approached Officer Rivera-Silva in February 1990, requesting her assistance in this illegal plan, she immediately reported the details of the plan to Colonel Richardson of the CCI. The Charlotte County Sheriff's Office was contacted, and an investigation into the matter was initiated. An electronic recording devise was planted on Officer Rivera-Silva, and she had four additional conversations with the Respondent. The electronic bugging system allowed Deputy Juan Acosta, the lead investigator, to listen to the conversation between the Respondent and Officer Rivera-Silva, and at the same time record the conversations on audio tape. Deputy Acosta was present and listened to all four of these bugged conversations between the Respondent and Officer Rivera-Silva. In the last monitored conversation on February 24th, the Respondent indicated that evening he would receive a call at the Babe Ruth Field, meet with the contact lady, and meet with Officer Rivera-Silva the next morning as planned. Respondent was placed under close observation, and he was observed at the Babe Ruth Field, and, while there, he received and made a couple of phone calls. Then he returned to his residence. The next morning, the Respondent left his residence, and traveled in the direction of the correctional facility. As he pulled into the parking lot of the institution, Deputy Acosta and the other officers confronted him. A search of the car's interior was conducted, but no contraband was found. The Respondent was escorted into the administration building where an interview was conducted. Initially, the Respondent indicated that Deputy Acosta and the other officers had the wrong guy, and that they were making a mistake. Deputy Acosta played the taped conversations for the Respondent, then he said, "You got me, I'll tell you what you need to know." The Respondent stated that he was just saying those things, because he wanted to date Officer Rivera-Silva, and was trying to impress her. At the hearing, Respondent indicated that this plan was completely Officer Rivera-Silva's idea. The Respondent was not arrested, and was never criminally prosecuted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED. DONE AND ENTERED this 24th day of April, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: Paragraphs 1 - 32 Respondent's proposal findings of fact. Respondent did not file proposed findings as of the date of this order. COPIES FURNISHED: James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Dawn Pompey, Esquire Assistant General Counsel Florida Department of Law Enforcement PO Box 1489 Tallahassee, FL 32302 Kevin Shirley, Esquire 126 East Olympia Avenue Suite 408 Punta Gorda, Florida Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue The issues to be determined in this case are whether Respondent has failed to maintain the qualifications required for a correctional officer pursuant to Section 943.1395(7), Florida Statutes (2006),1/ and Florida Administrative Code Rule 11B- 27.0011(4)(b), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified by the Department as a correctional officer in the State of Florida, having been issued Correctional Certificate #170241. Respondent and Candida Nowlin are engaged and live together. They have lived together since 2002. Ms. Nowlin has two children from a previous relationship and she and Mr. Saria have a child together. At the time of the events giving rise to these proceedings, the couple was under a great deal of stress because of a serious accident involving one of Ms. Nowlin's children. On the evening of November 6, 2006, Mr. Saria and Ms. Nowlin had an argument. She asked him to leave, and he refused. In his anger, he slammed a cordless phone in their home against the kitchen counter. However, there is no competent evidence that he struck or grabbed her, or threw her into a wall. The only competent testimony presented is that he touched her arms in order to move her out of his path as he went to another room in the home, but did not harm her in any way. Ms. Nowlin felt that she and Mr. Saria needed some time apart, so when Mr. Saria refused to leave their home, she went with her young daughter next door to her neighbor's home to call the police. Her neighbor, Ms. Epley, was having a dinner party. She noticed that Ms. Nowlin was crying and she let her use her phone, but was distracted by her hostess duties. She did not remember Ms. Nowlin being injured, and Ms. Nowlin did not tell her that Mr. Saria had beaten her up. Ms. Nowlin called the police from Ms. Epley's home. Two officers came to the home, then-officer Barraclough and Sergeant Spears. They interviewed Ms. Nowlin, Ms. Epley, and Mr. Saria, and arrested Mr. Saria and took him away. After they had removed Mr. Saria from the home, the two officers completed statements from both Ms. Epley and Ms. Nowlin. Officer Barraclough testified that he saw scratches and red marks on Ms. Nowlin's arms. However, his testimony was contradicted by all other witnesses who testified, and is not credited. Sergeant Spears, who did not testify, took Ms. Nowlin's statement. While she was doing so, Ms. Nowlin's mother came to the home. Her testimony, which is credited, is that Ms. Nowlin had no bruises or marks on her arms and that Ms. Nowlin was primarily upset at that point because Mr. Saria had been arrested. The only competent evidence of what happened between Ms. Nowlin and Mr. Saria during their argument is the testimony of the two of them. They both deny vehemently that he struck her or engaged in any unwanted touching. They both insist that they had an argument because of the amount of stress they were under, and that the police were called because Ms. Nowlin felt they needed some time away from each other.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of November, 2009.
The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue Case Number 91-8116EC: Whether the Respondent, Fred Peel, violated Section 112.313(6), Florida Statutes: (1) by failing to have complaint review procedures in place in his office as required by Section 112.533(1), Florida Statutes; (2) by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report; and (3) by attempting to charge $5.00 for copy of the arrest report? Case Number 91-8323EC: Whether the Respondent, John Jenkins, violated Section 112.313(6), Florida Statutes, by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report?
Findings Of Fact The Respondents. The Respondent, Fred Peel, is the Sheriff of Washington County, Florida. (Stipulated Fact). Sheriff Peel has continuously served as the Sheriff of Washington County for the past fifteen years. (Stipulated Fact). Sheriff Peel is an elected official. (Stipulated Fact). At all times relevant to this proceeding, Sheriff Peel served as a public officer subject to Section 112.313(6), Florida Statutes. The Respondent, John Jenkins, is a captain with the Washington County Sheriff's Department. (Stipulated Fact). Captain Jenkins has continuously served with the Sheriff's Department for ten years. (Stipulated Fact). Captain Jenkins was appointed by Sheriff Peel pursuant to Chapter 30, Florida Statutes. (Stipulated Fact). At all times relevant to this proceeding, Captain Jenkins served as a public officer subject to Section 112.313(6), Florida Statutes. The Arrest of the Complainant. The complainant, Timothy Hinson, was arrested by a deputy of the Washington County Sheriff's Office on November 26, 1990. Mr. Hinson was charged with driving under the influence, driving while license suspended or revoked and refusal to sign citation. (Stipulated Fact). At the time of his arrest, Mr. Hinson was intoxicated. Mr. Hinson's speech was slurred, his appearance was disheveled and his ability to understand verbal communication was poor. After being arrested and transported to the Washington County jail, Mr. Hinson made profane and abusive threats addressed to the arresting deputy and the "Sheriff". Mr. Hinson threatened to have the "Sheriff" removed. Mr. Hinson did not know who the Sheriff was at the time. Mr. Hinson's actions, failed to prove, as suggested by the Respondents, that Mr. Hinson had a vendetta against the Respondents or law enforcement personnel in general. This evidence merely proved that Mr. Hinson was drunk. The parties stipulated that, prior to his arrest on November 26, 1990, Mr. Hinson had been arrested six times since 1983. This evidence failed to prove, however, the Respondents' contention that Mr. Hinson had a grudge or vendetta against the Respondents or law enforcement personnel in general. This evidence suggests that Mr. Hinson has a drinking problem. Mr. Hinson's Effort to Obtain a Copy of His Arrest Record. Just prior to noon on December 28, 1990, Mr. Hinson went to the Washington County Sheriff's offices. Mr. Hinson went to the Sheriff's offices with the intent to obtain a copy of the records related to his arrest on November 26, 1990. (Stipulated Fact). Mr. Hinson was met in the lobby of the Sheriff's offices by Sharon Bellamy, an employee of Sheriff Peel. Mr. Hinson informed Ms. Bellamy that he wanted a copy of his arrest record. Mr. Hinson informed Ms. Bellamy that he needed a copy of the documents for his defense. Ms. Bellamy retrieved Mr. Hinson's file from the office where records were kept and brought it to the lobby to make the copies requested at a copy machine located in the lobby. There were two documents in the file that Mr. Hinson requested: the complaint and the arresting report. As Ms. Bellamy began to make a copy of the documents Mr. Hinson had requested, she found a copy of another document that had been mailed to Mr. Hinson that he had not requested. The document was a notice to Mr. Hinson that his Florida drivers' license had been suspended for refusing to take a breath test. Ms. Bellamy began quizzing Mr. Hinson about whether he had received the document. Although Mr. Hinson had in fact received the notice Ms. Bellamy asked him about, he told her he had not and requested a copy of it. Ms. Bellamy continued to ask Mr. Hinson about the notice. The conversation between Mr. Hinson and Ms. Bellamy became more agitated, although the evidence failed to prove why. Pam Miner, the Sheriff's secretary, was in an office next to the lobby. The door opening into the lobby was open and Ms. Miner overheard Ms. Bellamy and Mr. Hinson. Sheriff Peel was sitting in his office, which adjoined Ms. Miner's office. The door opening into Ms. Miner's office was also open and he could also hear the discussion. At some time after Ms. Bellamy began discussing the notice concerning Mr. Hinson's driver's license with him, Ms. Miner went to the door of Sheriff Peel's office and gave him a look which she described as intended to convey to Sheriff Peel that "you need to do something". After Ms. Miner looked into Sheriff Peel's office, he went out into the lobby. Sheriff Peel initially watched what was going on. At some point shortly after Sheriff Peel went into the lobby he asked Mr. Hinson some questions about Mr. Hinson's driver's license. Mr. Hinson informed Sheriff Peel that he had a Maryland driver's license. At some point during the discussion between Sheriff Peel and Mr. Hinson, Mr. Hinson indicated that he was seeking a copy of the documents in his file for his attorney. Sheriff Peel suggested that Mr. Hinson have his attorney get the copies. The discussion between Mr. Hinson and Sheriff Peel became more heated and argumentative. Eventually Sheriff Peel told Ms. Bellamy to "charge him $5.00" and started to leave. Mr. Hinson perceived this comment to mean that he was to be charged $5.00 per page or document. Prior to coming to the Sheriff's office to obtain copies of the documents in his file, Mr. Hinson had telephoned the Sheriff's office and had been told that there was a $2.00 copying charge. Two dollars is, in fact, what the Sheriff's office normally charges for copying documents. Mr. Hinson believed, therefore, that he would be charged $2.00 per document or a total of $4.00 for the documents he had requested. When Mr. Hinson heard the Sheriff indicate that he was to be charged $5.00, he became angry because he believed that Sheriff Peel was suggesting that he be charged $5.00 per copy or $5.00 per page. Such a charge was inconsistent with what he had been previously told about copying charges. Mr. Hinson incorrectly believed that Sheriff Peel was going to charge him the higher rate for copying because he had a Maryland drivers' license and was, therefore, apparently not from Washington County. Mr. Hinson confronted Sheriff Peel by stating that he had been told that the copying charge was only $2.00 a copy. Sheriff Peel, if he had meant to charge Mr. Hinson a total of $5.00 as suggested during the final hearing, did not clarify that he was only going to charge him a total of $5.00 instead of $5.00 per copy as Mr. Hinson apparently believed. The failure to clarify what he meant, and the fact that Sheriff Peel did not know how many documents were actually involved, support the conclusion that Sheriff Peel did not intend that Ms. Bellamy merely charge Mr. Hinson a total of $5.00. Of greater importance, these facts explain Mr. Hinson's confusion and anger. He reasonably believed he was going to be overcharged. Some time after Mr. Hinson confronted Sheriff Peel about the $5.00 charge, Sheriff Peel told Ms. Bellamy not to give Mr. Hinson anything. Mr. Hinson confronted Sheriff Peel, although he did not know at the time that he was the Sheriff, and asked him "what's the problem." Mr. Hinson also asked for the person in charge of "internal affairs", stating that he wanted to file a complaint against Sheriff Peel. Sheriff Peel informed Mr. Hinson that the Sheriff's Office did not have an "internal affairs" department, that he was the Sheriff, and that he would not take a complaint against himself. The Washington County Sheriff's Office has no written policy for handling complaints against personnel. The Washington County Sheriff's Office has an informal, unwritten policy for handling complaints. Sheriff Peel makes the final decision concerning complaints. At some time shortly after Sheriff Peel and Mr. Hinson began to argue, Captain Jenkins came to the door opening to the lobby from the room that he had been in. Initially, Captain Jenkins stood watching the discussion. Because of the smallness of the room, Captain Jenkins was relatively close to Mr. Hinson. After Sheriff Peel informed Mr. Hinson that there was no internal affairs department and that he would not take a complaint against himself, Captain Jenkins stated "I'm internal affairs this week. What's the problem?" or a statement to that effect. Although Captain Jenkins testified that he made the comment to try to diffuse the situation by injecting some humor into the situation, the weight of the evidence does not support this explanation. The weight of the evidence supports a conclusion that the comment was made in a snide and sarcastic manner. Mr. Hinson was being rude and confrontational. Sheriff Peel and Mr. Hinson were engaged in a somewhat heated argument. Mr. Hinson was obviously angry. To make such a statement to a person in this type situation evidenced a failure to exercise good judgement. The statement was intended to rebuke and insult Mr. Hinson. Mr. Hinson demanded that Captain Jenkins identify himself, which he did. Mr. Hinson told Captain Jenkins that he wanted to file a complaint against Sheriff Peel. Captain Jenkins told him that he would not take a complaint against the Sheriff. Captain Jenkins told Mr. Hinson that it would be better if he left the office. It was apparent to Mr. Hinson that nothing more could come of the confrontation with Sheriff Peel and Captain Jenkins. Sheriff Peel had ordered that nothing be given to Mr. Hinson. Sheriff Peel and Captain Jenkins had refused to take a complaint. It had been suggested that he leave. Mr. Hinson felt intimidated. Captain Jenkins is 6'1" and weighs approximately 225 pounds while Mr. Hinson is slightly built in comparison. There was nothing to be gained by continued argument and, therefore, Mr. Hinson left. Mr. Hinson was not intoxicated or taking medication at the time of his visit to the Sheriff's offices. Mr. Hinson's attitude and demeanor with Ms. Bellamy was defensive and confrontational. Mr. Hinson's displeasure over his arrest and his attitude were perceived as rudeness by Ms. Bellamy. Although Mr. Hinson did not yell or use profanity, as described by Ms. Bellamy, Mr. Hinson "had an attitude". These findings are based in large part upon the testimony of Ms. Bellamy, Pam Miner (the Sheriff's secretary) and David Corbin, the Director of Washington County Parks and Recreation. Mr. Corbin was in the lobby during the confrontation. Although Ms. Bellamy and Ms. Miner are employed by Sheriff Peel, and the fact that Ms. Bellamy was not totally candid in her testimony, the crucial elements of the testimony of the Respondents and these witnesses were consistent. It is difficult to categorize the degree of Mr. Hinson's rudeness. All of the witnesses agreed Mr. Hinson was rude and confrontational. His rudeness and attitude were not, however, so severe that Ms. Bellamy did not believe that she could handle Mr. Hinson. Nor did Ms. Bellamy ever feel threatened by Mr. Hinson. She did not request any assistance from Sheriff Peel or Captain Jenkins, both of whom were in adjoining offices. Nor was Mr. Hinson's attitude and treatment of Ms. Bellamy sufficiently troublesome to cause Captain Jenkins, who could hear the discussion between Ms. Bellamy and Mr. Hinson, to come out to assist Ms. Bellamy until after Sheriff Peel had intervened. Finally, Ms. Bellamy left the lobby during the confrontation to prepare to go to lunch, not something that would be expected of someone witnessing an overly serious confrontation. Sheriff Peel and Captain Jenkins did not yell at Mr. Hinson. Nor did they laugh at Mr. Hinson. Sheriff Peel did, however, become angry and argumentative with Mr. Hinson. The situation could have been ended by simply allowing Ms. Bellamy to provide the copies of the documents Mr. Hinson had requested, which had already been made. Captain Jenkins was sarcastic with Mr. Hinson and, to some degree, because of his size, intimidating to Mr. Hinson. Captain Jenkins' comment to Mr. Hinson, although sarcastic, was not threatening. Mr. Hinson, based upon 20-20 hindsight, was not a threat to anybody in the Sheriff's offices. This is not to say, however, that Mr. Hinson should have been taken lightly or that Mr. Hinson's conduct should have been totally accepted and tolerated by Sheriff Peel. Nor can it be concluded that Captain Jenkins should have totally ignored what was going on. Effort to Secure a Special Privilege, Benefit, or Exemption. The weight of the evidence failed to prove that the failure to have a written complaint procedure in place in the Washington County Sheriff's Office was intended by Sheriff Peel to secure a special privilege, benefit or exemption. Mr. Hinson, after telephoning the Florida Sheriff's Association, was informed that he could pick up a copy of the documents he wanted at the Sheriff's offices. Mr. Hinson also could have obtained a copy of the documents he wanted by having someone else, including his attorney, pick them up or by requesting a copy of the documents from the clerk of court's office. The weight of the evidence failed to prove that Sheriff Peel was attempting to intimidate Mr. Hinson into leaving the Sheriff's offices without obtaining a copy of the documents he had requested in order to secure a special privilege, benefit or exemption. Any funds collected for copying by the Sheriff's Office are funds of Washington County. Sheriff Peel has no control or direct use of those funds. The weight of the evidence failed to prove that Sheriff Peel was attempting to charge $5.00 for the copies in an effort to secure a special privilege, benefit or exemption. The weight of the evidence failed to prove that Captain Jenkins' actions were intended to intimidate Mr. Hinson into leaving the Sheriff's offices in order to secure a special privilege, benefit or exemption. At worst, the evidence proved that Sheriff Peel, arguably, could have exercised a little more patience and that Captain Jenkins made a smart remark at an inappropriate time. These actions, in light of Mr. Hinson's attitude and demeanor, do not support a conclusion that Sheriff Peel or Captain Jenkins were attempting to secure a special privilege, benefit or exemption for themselves or others. The actions of all those involved in this situation were emotional reactions to the situation and were not calculated to achieve any particular result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report dismissing Complaint No. 91-42 and Complaint No. 91-43. DONE and ENTERED this 19th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1-2. 2 3. 3 5. 4 6. 5 7. B. 1 9. 2 10. C. 1 23. Hereby accepted. Conclusion of law. D. 1 28-30. 2 29. 3 30. E. 1 13. 2 36. 3 14 and 23. 4 14-15. 5 14. 6 17 and hereby accepted. 7 See 37. 8 See 37-38 and 40. Ms. Bellamy's relationship to the Respondents has been considered. While it is true that Ms. Bellamy was not totally candid, the weight of the evidence failed to prove that Ms. Bellamy's testimony was materially flawed, especially in light of the testimony of other witnesses. 9-10 Not supported by the weight of the evidence. 11 See 41. The evidence failed to prove that "no reasonable person could have perceived Mr. Hinson as posing such a danger." Such a conclusion can only be made with 20-20 hindsight. 11a-b 38. 11c 19. 11c 31 and 38. 12 20-21 13 21 and see 26. 14 27. 15 28. 16 Not relevant. 17 22. 18 22-24. 19 25. 20 See 31. 21-22 32. The last sentence of proposed finding of fact 22 is not supported by the weight of the evidence. 23 33. 24 34. 25 35. See 35. See 37-40. The last three sentences are not supported by the weight of the evidence. See 25. The Respondents' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 See 11. 3 13-14. 4 15 and 17-19. 19, 21 and 37-38. The allegations concerning whether Mr. Hinson became "loud" are rejected as not supported by the weight of the evidence. See 27. The evidence failed to prove that Sheriff Peel "explained to Hinson that he had a small office" in an effort to explain why he did not have an internal affairs department. The Respondents' suggestion that Mr. Hinson was out of control is not supported by the weight of the evidence. See 31 and 33. The weight of the evidence failed to prove that Captain Jenkins suggested that Mr. Hinson go to the State Attorney's office if he wanted to file a complaint. See 22. The weight of the evidence failed to prove that Sheriff Peel was aware of how many pages were to be copied, that Mr. Hinson left after being told that the charge was $5.00 or that Mr. Hinson was not told to leave. 23 and hereby accepted. 10 16, 18 and 23. 11 45. 12 28-30. See 31. Hereby accepted. See 47. The last two sentences are not relevant. 16 See 24-25, 38-39 and 48. 17 42. 18 See 12. The last sentence is not supported by the weight of the evidence. 19-24 Although portions of these proposed findings of fact are true, the ultimate findings of fact suggested by these proposed facts are not supported by the weight of the evidence. For example, although it is true that Mr. Hinson admitted that he had a bad memory, the essential elements of his testimony were credible. 25 41-47. The last two sentences are not supported by the weight of the evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 William E. Powers, Jr., Esquire Post Office Box 12186 Tallahassee, Florida 32317-2186 Bonnie J. Williams Executive Director Commission On Ethics The Capitol Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
