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 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.
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
Findings Of Fact At all times pertinent to the issues herein, the Criminal Justice Standards and Training Commission was the state agency responsible for the training and certification or law enforcement and corrections officers in Florida. Respondent was certified as a Corrections Officer under certificate No. 48891 on August 8, 1991. On June 29, 1994, Respondent was employed as a Corrections Officer I at the Hillsborough Corrections Institute in Tampa and had been so employed for approximately three and a half years. On that day, officer Ricardo Sementilli, a policeman with the Tampa Police Department's narcotics bureau, with approximately six and a half years experience in law enforcement, was targeting a house in Carver City, a Tampa housing area, for suspected unlawful narcotics activity. In the course of his investigation, Officer Sementilli was using the services of a confidential informant, Penny DuFour. Ms. DuFour, herself a former drug user, had been working as an informant for the police in general and for Officer Sementilli in particular for almost two years. On this evening, he proposed to have Ms. DuFour make a controlled purchase of illegal drugs at this particular residence. As preparation for the controlled buy, Ms. DuFour was searched by Officer Keene, also of the Tampa Police Department, to insure that she did not have any narcotics or other contraband in her possession. None was found during this search which is a normal procedure of the Tampa Police Department as a part of a controlled purchase by a confidential informant. Officer Keene was assigned to the Police Department's Tactical Division in narcotics enforcement and had worked in that division for approximately five years. She was working with Sementilli on this operation because he was well known and she was unknown in the geographic area in which the buy was to be made. Pursuant to the officers' plan, Officer Sementilli drove Ms. DuFour and Officer Keene to the intersection of Laurel and Manhattan Streets in Carver City. At this point, Keene, who had binoculars with her, hid out of sight behind a wall at Jefferson High School in a position where she could see Ms. DuFour. When Keene was in place, DuFour was sent out from the police vehicle to approach the residence in question. Keene was able to keep DuFour in sight the entire time using the binoculars. As DuFour approached the residence in question, a red compact car, occupied by Mr. Sampson and the Respondent, drove up. Both DuFour and Keene indicated Mr. Sampson was in the passenger seat and Respondent, who was dressed in a law enforcement uniform, was driving. DuFour went up to the vehicle and leaned in the passenger window. She asked Mr. Sampson if he was "straight." By this she meant to ask if he had any narcotics on his possession. In response, Sampson said he did, reached under the passenger seat of the car, and pulled out a plastic baggie in which were several pieces of what appeared to be cocaine. He placed the baggie in his lap and from it extracted a small piece of the substance which he gave to DuFour in exchange for $20.00 in U.S. currency which DuFour had been given by Officer Sementilli. All during this time, the baggie was in plain view on Sampson's lap and Respondent could see what was happening. She was either looking at Sampson or looking out the window, and Ms. DuFour was of the opinion that Respondent was fully aware of what was going on though she did not say anything. It is so found. After she received the substance from Sampson and paid him for it, DuFour left the vehicle and returned to where Officer Keene was located without either stopping or speaking with anyone on the way. When she got to Keene, she handed over the substance she had received from Sampson and was searched to insure she had not hidden any additional contraband on her person. She had not. Sementilli performed a field test of the substance at the scene. The test indicated the substance DuFour had received from Sampson in the presence of the Respondent was cocaine. This tentative identification was subsequently confirmed by a laboratory analysis conducted by the Florida Department of Law Enforcement. No issue was raised as to chain of custody of the sample in question or as to its identification as cocaine. At the time the sale took place from Sampson to DuFour, the officers obtained the license tag number on the vehicle being driven by Respondent and from which Sampson made the sale. A subsequent check with the Department of Motor Vehicles revealed that the vehicle was owned by Louis Sales, Respondent's father. Approximately one month after the sale described above, the car was discovered at the home belonging to Mr. Sampson's mother. As the officers were attempting to impound the vehicle, Respondent approached them. Keene at that time identified Respondent as the driver of the vehicle at the time of the sale in issue here and placed her under arrest. However, criminal charges were not preferred against her. At hearing, Respondent indicated that on the day of the alleged sale, she had been driven to work in her father's car by her boyfriend, Mr. Sampson, who was without his own vehicle at the time. While at work, she was interrogated by facility investigators relative to an allegation that she was introducing contraband into the corrections facility. Because this upset her, she asked for and was give permission to leave work early, approximately 5:30 PM. She then contacted Mr. Sampson who picked her up in her vehicle at approximately 7:00 PM that evening. When Sampson and Respondent left the corrections facility, they drove to Carver City because Sampson said he had to run an errand in the area. At that time Carver City, located some 45 minutes from Plant City, where Respondent lived, was known as an area of high drug activity. It was not uncommon for many drug dealers to be operating on the streets of the community. Respondent knew that Mr. Sampson was a drug dealer. He would sometime sell drugs openly in front of her. She had been present on several other occasions when DuFour had purchased cocaine from Mr. Sampson. At the time she met Mr. Sampson, in December, 1993, notwithstanding she denied it, Respondent knew he had just recently been released from prison because he told her so. He had been convicted of escape and grand theft. Nonetheless, they developed a relationship during the course of which she admittedly began to suspect he was dealing drugs. She did not ask him if this was so, however, even though she knew that her knowing association with a drug dealer could place her certification in jeopardy. When she became convinced that Sampson was dealing drugs, Respondent still did not terminate the relationship, however, claiming she was afraid to do so. When she was arrested as a result of the instant sale, however, she finally broke off the relationship. As a result of the controlled buy in issue, Mr. Sampson was convicted of sale of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Sydell T. Sales, be found guilty of demonstrating less than good moral character, and that her certification as a corrections officer be placed on probation for a period of one year. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of December, 1995. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 208 Tampa, Florida 33607 A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 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
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of February, 2004.
The Issue The issue presented for decision herein is whether or not Respondent engaged in acts and/or conduct on July 27, 1983, which reduced his effectiveness as a law enforcement officer by committing a battery upon a police officer and failed to maintain good moral character as required pursuant to Section 943.1395(5), Florida Statutes, and Section 943.13(7), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including post-hearing documents submitted by Respondent, I hereby make the following relevant factual findings. By its Administrative Complaint filed December 19, 1984, as amended, Petitioner seeks to revoke the certification of Respondent, Lamont Taylor, who was certified by the Criminal Justice Standards and Training Commission on January 5, 1978. Respondent has been issued Certificate No. C-4405. On July 27, 1983, Respondent was stopped by Louis Churukian, a general patrolman employed by the Metro-Dade Police Force in excess of two years. Officer Churukian was employed on the 12-8 shift on July 27, 1983, and arrested Respondent for speeding, to wit, 50 miles per hour in a 35 miles per hour zone on Northwest 163 Street in the area of 14th Avenue, Miami Beach, Florida. In making the arrest, Respondent had to be apprehended with Officer Churukian using his emergency equipment (siren and emergency lights) for more than two blocks. When Officer Churukian was able to get Respondent to pull over, Respondent was told that he was observed speeding (50 miles per hour in a 35 miles per hour zone) whereupon Respondent was asked to tender his driver's license. Respondent was unable to produce his driver's license and he remained belligerent and hostile to Officer Churukian throughout the time that he was being arrested. Due to Respondent's hostile attitude, Officer Churukian requested the assistance of a backup officer who assisted in taking Respondent to a Metro-Dade police station for booking. Prior to placing Respondent under arrest, Officer Churukian asked Respondent if he had any weapons on his person whereupon Respondent advised that he had a gun in his waistband. Officer Churukian removed the weapon from Respondent's waistband which was a Smith and Wesson 357 revolver loaded with 6 rounds of "upper jacketed" ammunition. Respondent was transported to Station G where he was fingerprinted and booked for failure to produce a driver's license and later for battery upon a police officer. After Respondent was booked and his handcuffs were removed, he approached Officer Churukian without warning and struck him in the soft tissue area of his throat. Officer Churukian was administered emergency treatment for soreness and inflammation in the soft tissue area of his throat. Throughout the arrest and booking procedure, Officer Churukian did not engage in any act which might be regarded as provocative to prompt Respondent to strike him. In what has been described as a "sucker punch" by Officer Charlie Lee Daye, a correctional officer employed in a shakedown area of the Metro-Dade County Jail since approximately May 29, 1976, Respondent knocked Officer Churukian to the floor of the police station. Angel Nieves, a special response technician for Metro-Dade Police Force for a period in excess of thirteen years, was called upon to assist Officer Churukian to take Respondent to the jail. Special response technicians are always called upon when there are charges made against fellow police or correctional officers in Dade County. While Officer Churukian took Respondent to the jail, he was not abusive and Officer Nieves saw nothing that would prompt Respondent to strike Officer Churukian. Respondent failed to offer any mitigating testimony or other evidence to refute the allegations set forth in the Petitioner's charges filed herein. On April 5, 1994, respondent was accepted as a candidate for the State's Attorney's Deferred Prosecution Program and therefore he Respondent was not adjudicated guilty of the charges filed against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's Certificate Number C-4405 be revoked. RECOMMENDED this 8th of July 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of July 1985. COPIES FURNISHED: Robert Rand, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lamont Taylor 14404 NW 15 Drive Miami, Florida 33167 Darylp McLaughlin Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
