The Issue The Administrative complaint dated September 19, 1994, alleges that Respondent, a licensed class "D" security officer, violated section 493.6118(1)(j), F.S. by committing a battery on or about January 28, 1994. The issue is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact At all times relevant to this action, Respondent, Ivan Machiz, was licensed as a class "D" security officer, license number D91-19035, by the Department of State, Division of Licensing, pursuant to chapter 493, F.S. The proceeding at issue is the only disciplinary action in evidence against Mr. Machiz' license. On January 28, 1994, Mr. Machiz visited Jameryl Curley at her apartment in Tampa, Florida. Mr. Machiz and Ms. Curley had been roommates. Mr. Machiz sought to recover his claimed possessions, including some chairs and a French racing bicycle. Ms. Curley told Mr. Machiz she had sold the items as payment for some delinquent bills and that he was not entitled to take them. He moved to take the bicycle and she hung on to it. The couple argued and struggled over the bicycle. In the struggle Mr. Machiz grabbed Ms. Curley and pinned her left arm behind her back, twisting it and causing her to cry for help. Benjamin Dobrin, who lived with his brother in the next door apartment and shared a back porch with Ms. Curley, answered the call and found Mr. Machiz on top of Ms. Curley, forcing her face-first into a couch or futon, and twisting her arm behind her back. Mr. Dobrin immediately returned to his apartment and called "911" for help. He then went back to Ms. Curley's apartment. By then, she was up and was holding on to the bicycle and Mr. Machiz was dragging it with her. She was crying and yelling, "Help, you're hurting me. Stop!" Mr. Dobrin and his brother stopped the bicycle and Mr. Machiz left. Deputy Chris Williams arrived shortly thereafter and found Ms. Curley upset and hyperventilating. After interviewing the Dobrins, Ms. Curley, and then Mr. Machiz (at his apartment in the next building), Deputy Williams arrested Mr. Machiz. He admitted that he put Ms. Curley in a wristlock because she was struggling against his attempts to recover what he claimed was his. He was not protecting himself or another from physical harm. At the criminal trial on one count of a battery charge, on March 24, 2994, County Judge Cynthia A. Holloway heard the testimony of the Deputy, Mr. Dobrin, Ms. Curley, and Mr. Machiz, and admonished that Mr. Machiz had no right to "self-help" recovery of his property, to go to someone's apartment to remove property over objection, and to "pulverize anybody to get that property back". (Respondent's exhibit #1, p. 20) The court withheld adjudication of guilt, and placed Mr. Machiz on six months probation, with the provision for termination after four months on the condition that he perform 25 hours of community service, pay court costs and write a letter of apology to Ms. Curley.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order finding that Ivan Drew Machiz violated section 493.6118(1)(j), F.S., and imposing a penalty of $500 fine. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of March, 1995. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard R. Whidden, Jr., Esquire Dept. of State/Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Ivan Drew Machiz 481 Hardendorf Avenue Atlanta, Georgia 30307
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
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
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are true, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida. Respondent holds Correctional Certificate No. 200857, issued to her by Petitioner. Shortly after 2:00 a.m., on January 8, 2005, Corporal Andrew Markham of the City of Sebring Police Department was dispatched to the scene of a reported traffic crash at the intersection of Center Street and Northeast Lakeview Drive in Sebring, Florida. Corporal Markham found no vehicles in the intersection or any evidence of a crash there. Adjacent to the intersection, in the parking lot of the Sebring Public Library, Corporal Markham saw a car with its brake lights illuminated. He approached the car to determine whether the occupants could provide any information about the reported traffic accident. Corporal Markham observed that the front of the car was damaged from its collision with a low barrier wall that bordered the parking lot. The windshield was also damaged from what Corporal Markham concluded was the impact of the occupants' heads with the windshield when the car hit the barrier. When Corporal Markham approached the car, he saw Respondent exit the driver's seat and begin to walk away. Corporal Markham stopped Respondent to speak with her. Respondent had blood on her face, as did the other occupant of the car. At the time of the incident, Respondent denied being the driver of the car. At the hearing, Respondent admitted that she was the driver. During his conversation with Respondent at the scene, Corporal Markham smelled the odor of alcohol on Respondent, noted that she was unsteady, and that her eyes were red. When Corporal Markham asked Respondent to take field sobriety tests, she continued to insist that she was not the driver of the car and would not take the tests. Based on his observations at the scene, his training, and his 13 years of experience as a police officer, Corporal Markham believed Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. Therefore, he arrested Respondent for the offense of driving under the influence of alcohol. Corporal Markham first transported Respondent to the Highlands County Medical Center to receive treatment for her injury. At the Medical Center, Respondent refused medical treatment, and Corporal Markham transported her to the Highlands County Jail. At the jail, Respondent was taken to the area where breath tests are conducted. Corporal Markham read Respondent the "Implied Consent" that informed her that if she refused to take the test, she could lose her driving privilege for up to one year. Respondent refused to take a breath test at the jail. Deputy Loran Danielson of the Highlands County Sheriff's Office was the officer on duty to conduct the breath tests at the jail. When Deputy Danielson met Respondent, he noted that her breath smelled strongly of alcohol, her eyes were bloodshot, her speech was slurred, and she was unsteady on her feet. Based on his observations of Respondent, his training, and his 10 years of experience as a Deputy Sheriff, Deputy Danielson was of the opinion that Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. During the time that Deputy Danielson talked to Respondent, she told him that she had consumed "many" drinks, and if she took the breath test, it would show "I'm drunk." On September 27, 2004, less than four months before the incident at issue in this case, Petitioner issued Respondent a Letter of Acknowledgement for an earlier driving under the influence (DUI) violation by Respondent. At the hearing, Respondent admitted that she had "a few drinks" with friends at a bar just prior to her arrest, but she denied that she was intoxicated. Respondent said the crash occurred because she had taken her eyes off the road to speak to passengers in the back seat. Respondent said she refused to take the field sobriety tests or the breath test at the jail because she was scared. Respondent explained that one term of her probation for the prior DUI conviction was that she was not to drink alcohol. Respondent expressed remorse for her behavior on January 8, 2005, and claimed she has stopped drinking alcohol. Respondent stated that her career as a correctional officer is very important to her, and she requested another opportunity to prove she is a responsible person and capable correctional officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent Tena D. Grant failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and ordering that her certification as a correctional officer be revoked. DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 4th day of April, 2006.
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
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
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact 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 correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
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 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of June, 2012.
