The Issue The two issues in this case are whether the Petitioner had been convicted of an offense involving assault, battery, or force on a person except in self- defense, and whether he concealed this on his application.
Findings Of Fact The Petitioner, Harry Paul Hett, applied to the Department of State for licensure as an unarmed security guard. The Department denied Petitioner's application. The parties stipulated that, except for the grounds stated by the Department in its letter of denial which are at issue, the Petitioner is qualified for licensure. In 1977, Petitioner was arrested for rape. While awaiting trial, he entered a plea under the mentally disordered sex offender statute, was found guilty, and was sent to Florida State Hospital on August 29, 1977. Subsequently, he was released from Florida State Hospital upon a determination that he was competent. Because it was determined the Petitioner was not qualified as a mentally disordered sex offender and had been adjudicated guilty, on June 1, 1978, he was placed on 15 years probation. As part of his probation, Petitioner was ordered to continue outpatient care. On February 6, 1981, an affidavit of probation violation was filed against the Petitioner. He was arrested on March 9, 1981, and charged with lewd and lascivious conduct (child molestation) and probation violation. On March 26, 1981, Petitioner pled guilty to probation violation and was sentenced to five years in Florida State prison with credit for time previously served. The Petitioner was released early in 1983 and subsequently was employed as an unarmed security guard. Petitioner's application revealed his arrest for lewd and lascivious conduct, which was dealt with by the court as part of the Petitioner's probation violation. On September 25, 1981, while being held by the authorities in Hillsborough County, the Petitioner was held in contempt by the court in Pinellas County, Florida, for failure to appear. When the Petitioner must recall the events which surrounded his arrest for lewd and lascivious conduct, he becomes emotionally upset. At the hearing, this affected his recollection of those events surrounding his offenses. Because he has back problems, Petitioner cannot obtain employment as a laborer. While working as an unarmed security guard, the Petitioner was assigned to a variety of posts such as the local colosseum, malls, and shopping centers. Petitioner has a history of inappropriate sexual conduct associated with alcohol abuse. At the time of this hearing, the Petitioner was not attending any counseling sessions or Alcoholics Anonymous meetings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State deny licensure as an unarmed security guard to the Petitioner. DONE and RECOMMENDED this 7th day of November, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1983. COPIES FURNISHED: Mr. Harry Paul Hett 7317 Las Palmas Court Tampa, Florida 33614 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether Respondent, a certified correctional officer, committed the offenses alleged in the Administrative Complaint, and if so, what discipline or penalty is appropriate.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission (Commission), is the agency of the State of Florida vested with the statutory authority pursuant to Section 943.1395, Florida Statutes, to certify the employment of correctional officers. Respondent, Loretta L. Scott, is a certified correctional officer holding certificate number 157788 issued by the Commission. At all times material to the allegations of the Administrative Complaint, Respondent was employed, and on duty as a correctional officer at the North Florida Reception Center (NFRC), a correctional facility of the DOC. On July 15, 1995, an incident of prisoner abuse occurred at NFRC involving the striking of an inmate, John Graham, by Corrections Captain Bailes during a formation of the inmates in the yard. The day of the incident was Respondent's first day on duty as an officer trainee at NFRC. Respondent was assigned to the team of officers on duty in the NFRC yard at the time of the incident. At some time prior to the incident, Respondent had left the yard for a short while to use the bathroom. After the incident, inmate Graham was escorted from the yard to the NFRC hospital by Captain Bailes and other correctional officers. Respondent was present and in the immediate area of the yard during the course of the incident, and assisted in escorting inmate Graham to the hospital. On or about July 27, 1995, Respondent was twice questioned under oath by Inspector Keith Adams concerning the incident of abuse of inmate Graham. The transcripts of the interviews were admitted as Petitioner's Exhibit 3. Respondent denied witnessing the striking of inmate Graham by Captain Bailes, and initially denied accompanying inmate Graham to the NFRC hospital; however, during the afternoon interview on July 27, 1995, Respondent stated that she assisted in accompanying inmate Graham to the NFRC hospital. Respondent again testified at hearing that she was not present on the NFRC yard, and did not observe the incident of abuse of inmate Graham, but may have been one of the officers accompanying inmate Graham to the hospital. Establishing the witnesses to the incident of prisoner abuse was a material aspect of the investigation conducted by the DOC into this matter. Respondent was not candid and forthcoming in her interviews with Inspector Adams. Respondent was part of the team of officers on the NFRC yard at the time of the incident and was observed on the yard during the time of the incident by several witnesses. While Respondent may have been away from the NFRC yard for a short period of time on July 15, 1995, Respondent was clearly present and accompanied inmate Graham to the NFRC hospital where other matters significant to the internal investigation occurred. Respondent's disclaimer of any material knowledge of the circumstances surrounding the incident of abuse of inmate Graham is not consistent with the evidence of record, and constituted a material misrepresentation to the investigating officer. As indicated above, July 15, 1995, was Respondent's first day on duty in the yard. She had not completed her training and was inexperienced as a corrections officer. The incident of prisoner abuse, which occurred on July 15, 1995, involved a high-ranking corrections officer, and resulted in significant internal personnel ramifications at NFRC.
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 suspending Respondent's certificate for a period not to exceed one year. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Mark P. Brewer, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Loretta L. Scott, pro se 4360 Outrigger Lane Tampa, Florida 33615 A. Leon Lowry, II, Director Division of Criminal Justice Standards & Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Post Office Box 1489 Tallahassee, Florida 32302
The Issue This cause came on for consideration before the Hearing Officer on Respondent's motion to dismiss this proceeding for lack of jurisdiction. Specifically, Respondent asserts that Petitioner lacks standing to maintain this proceeding pursuant to Section 120.57(1), Florida Statutes, asserting that Petitioner is net a "party" within the meaning of Section 120.52 (10) Id), Florida Statutes.
Findings Of Fact On May 28, 1980, Petitioner, Charles E. Roberts, Jr., pleaded guilty to a lewd and lascivious act in violation of Section 800.04, Florida Statutes. His conviction occurred in Case No. 79-9480B, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. Thereafter, on May 30, 1980, Petitioner was adjudged guilty and sentenced to five years in the State prison system. Subsequently, Petitioner, in keeping with the terms and conditions of Section 917.012, Florida Statutes, was evaluated by the State of Florida, Department of Corrections, and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at Florida State Hospital, Chattahoochee, Florida, by transfer from his confinement in the prison system to Florida State Hospital. At the time of the hearing in this cause, Petitioner was in residence at Florida State Hospital awaiting transfer back to the State prison system. By this proceeding, Petitioner seeks to contest Respondent's determination that all appropriate treatment modes for Petitioner have been exhausted.
The Issue The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b), by unlawfully possessing a controlled substance, cocaine, and by driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired or with a blood or breath alcohol level of .08 or above, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. At all times relevant, Respondent was a certified Florida Correctional Officer, having been issued certificate number 279704. On October 14, 2010, Respondent was operating or in actual physical control of his motor vehicle in South Miami, Florida. South Miami Police Officer Junior Vijil observed Respondent's vehicle stopped in the middle of the intersection of 58th Court and Southwest 73rd Street. After observing Respondent's driving pattern, Officer Vijil initiated a traffic stop. Officer Vijil approached Respondent's vehicle and made initial contact with Respondent. Officer Vijil observed certain indicators of potential impairment and requested Respondent to step out of the vehicle. Respondent complied with Officer Vijil's request. At the time of the traffic stop, Respondent had a passenger in the front seat of his vehicle. When Respondent exited the vehicle, at Officer Vijil's request, the passenger remained seated in the vehicle. Officer Vijil called for backup officers and awaited their arrival prior to performing field sobriety exercises with Respondent. The passenger remained seated, unsupervised, in Respondent's vehicle for several minutes until additional law enforcement personnel arrived. When South Miami Police Officer Louis Fata arrived on the scene, Officer Vijil initiated field sobriety exercises. At the conclusion of the field sobriety exercises, Officer Vijil did not immediately arrest Respondent, but rather, requested Respondent provide consent to search the vehicle. Respondent consented to the search. Officer Vijil began the search of the vehicle by first looking in the front interior compartment. He observed, in plain sight, a small, dark, plastic baggie in the center console. The center console's lid was absent. Although the baggie was dark in color, Officer Vijil could observe a white powdery substance that he believed was cocaine. After locating the suspicious substance, Officer Vijil removed the same from Respondent's vehicle and secured it in his patrol vehicle. A field test of the white substance was performed by Officer Vijil and Officer Fata, which resulted in a presumptive positive result for cocaine. Officer Vigil interviewed Respondent and the passenger concerning their knowledge of the suspected cocaine. After both individuals denied any knowledge of the substance, Officer Vijil arrested Respondent for possession of a controlled substance. Karen Wiggins, a criminalist at the Miami-Dade Police Department Forensic Service Bureau, performed a series of tests on the substance at issue, and credibly testified that the suspected substance was cocaine. Pursuant to the Joint Stipulation, the parties stipulate that, on October 14, 2010, Respondent did unlawfully drive or was in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired; or with a blood or breath alcohol level of .08 or above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of violating sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), by his violation of section 316.193, Florida Statutes. It is further recommended that Respondent be placed on probation for a period of six months, with the requirement that Commission-approved substance abuse counseling be completed prior to the end of the probationary period. It is further recommended that the Commission enter an final order dismissing the allegation that Respondent unlawfully constructively possessed a controlled substance in violation of section 893.13(6)(a), Florida Statutes. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 2nd day of August, 2013.
The Issue Whether or not Charles D. Reynolds, on January 7th, 1976, was arrested and charged with DWI, Aggravated Assault, and Resisting Arrest without Violence; the charge of DWI was reduced to driving with an unauthorized blood alcohol level; Charles D. Reynolds plead guilty, was adjudicated guilty and paid a fine of $200 plus court costs; the aggravated assault charge was nol prossed; he plead guilty and was adjudicated guilty of Resisting Arrest without Violence and paid a fine of $250 plus court costs, his license was revoked, and he was sentenced to DWI School; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Charles D. Reynolds, on December 25th, 1976, was arrested and charged with DWI, and resisting arrest with violence; he plead guilty to the lesser including Offense of Assault on a Law Officer, was put on one year's probation, sentenced to spend weekends in Jail for a period of three months beginning June 11th, 1977; he was allowed to vacate the guilty plea and plead nolo contendere to the charge of Assault on a Law Enforcement Officer with the same conditions as the guilty plea; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.
Findings Of Fact The Respondent, Charles D. Reynolds, is presently the holder of Florida Teacher's Certificate Number 316529, Graduate Rank III and is employed in the public schools of Duval County, Florida. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated May 17th, 1977. Upon examination of the recommendation, the Commissioner of Education found probable cause for filing a petition for the suspension of the Respondent's Florida Teacher's Certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, F.A.C. This determination was made on May 17th, 1977. On May 23rd, 1977, a petition for the suspension of the Respondent's Florida Teacher's Certificate was filed. The Respondent has filed his answer to the petition and has opposed the entry of an order of suspension. The case has been forwarded to the Division of Administrative Hearings for consideration by correspondence from the Petitioner dated July 14th, 1977. On January 7th, 1976, Respondent, Charles D. Reynolds a/k/a Chuck Daniel Reynolds was involved in an automobile accident in the parking lot of his residence at the Arrowhead Apartments located in Jacksonville, Florida. Officers of the Jacksonville Sheriff's Office investigated the case and in the course of the investigation asked to enter Respondent's apartment to obtain his driver's license. Reynolds was opposed to them entering his apartment, but they did go in. Reynolds went to the bedroom and obtained the license and came back into the living room area. At that point he became angry with the officers and took a swing in the general direction of a Sergeant Branch. The other officers subdued Reynolds and handcuffed him. He was subsequently taken to the hospital for treatment of wounds received in the scuffle. In addition to the events described, Reynolds also made verbal threats against the witnesses to the accident, to the effect that he would get even with them. During the course of this entire exchange, Reynolds appeared intoxicated as evidenced in slurred speech, erratic actions, excitability and a strong odor of the substance alcohol. He continued to be belligerent and kicked the side of the police car while being transported. It should be indicated that the Respondent did not carry out any of the verbal threats that he made. As a result of the incident, the Respondent was charged with DWI, aggravated assault, and resisting arrest without violence. The charge of DWI was reduced to driving with an unauthorized blood alcohol level and a guilty plea was entered for which he was fined in the amount of $200.00. The aggravated assault charge was nol prossed. The further provision of his sentence was that he attend the DWI school. The particulars of this case may be found in the Petitioner's composite exhibit 1 admitted into evidence, which describes the pleas and the judgment and sentence. The Respondent was fined in the amount of $250.00 for his plea of guilty to resisting arrest without violence. The second incident for which Respondent is charged in the Petition for Suspension, pertains to events on December 25th, 1976. On that date officers of the Jacksonville Sheriff's Office were traveling east on 103rd Street, in Jacksonville, Florida. Reynolds was going west, driving with his bright lights on and straying into the oncoming lane in which the officers were driving. The time was approximately 1:30-2:00 a.m. The officers turned around and pursued Reynolds, who at one point in the pursuit pulled off the road to avoid the officers. The officers finally caught Reynolds on Interstate 295 in Duval County, Florida. After making the stop, they removed Reynolds from the car and noted that he had a strong odor of alcohol about his person, and was staggering around. One officer administered so-called field sobriety tests , specifically the finger to nose and balance test. In the finger to nose test the individual tries to place an index finger on his nose while standing in a certain posture. Reynolds was unable to do this and was also unable to stand on one foot in attempting the balance test. The officers felt that Reynolds was driving while under the influence of alcohol; however, being Christmas Day they intended to give Reynolds the opportunity to have someone come and pick him up and drive his car home, and waive charges. When this was explained to Reynolds, Reynolds replied that he wanted to get back in his car, for purposes of driving away. The officers prohibited him from getting in the car, at which point a struggle ensued between the officers and Reynolds for a period of minutes. Most of the struggle was in the traffic lanes of Interstate 295. In the end, Reynolds was charged with DWI, a couple of traffic violations and resisting arrest with violence. After the struggle Reynolds indicated that the officers were going to be sorry for, "screwing with me." He was taken to the Duval County, Florida Jail and booked for the offenses and given a breathalizer examination which showed his reading to be .27 percent blood alcohol level. This reading nay be found in Petitioner's Exhibit 3 admitted into evidence. He entered a plea of guilty to the lesser included offense under resisting arrest with violence, to wit assault on a law enforcement officer. The Court withheld the adjudication of guilt and placed the Respondent on probation for a period of one year on the condition that he spend weekends in jail for a period of three (3) months, beginning on June 11th, 1977, and pay $10.00 per month for cost of supervision. This plea was subsequently withdrawn and the Court allowed a plea of nolo contendere to be entered in lieu of the guilty plea. The Court also allowed a motion to mitigate the sentence, which motion was filed prior to the imposition of the petition for suspension made by the Petitioner in this cause. The Court's Order Granting the Motion to Mitigate was entered subsequent to the Petition for Suspension made by the Petitioner. The probation terms were modified by memorandum of June 9th, 1977, from the Court, deleting the provision to spend weekends in jail. Subsequently, the Respondent was required to spend time working in a program known as the Jacksonville Probation and Restitution Center, working with young offenders. (The Director of that program testified in the hearing and indicated that Mr. Reynolds did an admirable job of assisting in the program.) For the violations alleged on January 6th, 1976 and December 25th, 1976, the Petitioner has charged Respondent with violations of Section 231.09 and .28, F.S. The two incidents will be discussed chronologically in considering whether the Petitioner has proven the violations or not. The first factual incident discussed pertains to the events of January 7th, 1976. In reviewing the events that led to the arrest and charges previously discussed and the subsequent disposition of those charges in terms of a possible substitute violation of Section 231.09, F.S., the only provision of that section which would seen to have any application would be Section 231.09(2) F.S. No other sub-paragraphs of Section 231.09, F.S. seem to have application under the evidential facts established. The subsection that does have application, i.e., Section 231.09(2), F.S. reads as follows: "EXAMPLES FOR PUPILS -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." This provision of the chapter has been considered in the case of Meltzer vs. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), in that opinion the Court held Section 231.09(2), F.S., to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc, reported at 553 F.2d 1008, The United States Fifth Circuit Court of Appeals, granted rehearing with the right for oral agreement and the opportunity to submit supplemental briefs, with the date of the oral agreement to be announced in the future. The rehearing has not been held at the time of this recommended order, to the knowledge of the undersigned. Consequently, the undersigned will report whether the evidential facts as demonstrated established a violation under the language of Section 231.09(2), F.S., with a caveat that this section may not withstand the final order of the Court in Meltzer, supra. Should Section 231.09(2), F.S. be upheld, the acts of being arrested and pleading guilty to driving with an unlawful blood alcohol level and resisting or opposing a police officer without violence constitute violations of Section 231.09(2), F.S., both in terms of the entry of the plea in those two counts and in terms of the underlying evidential facts which led to the plea of guilty. These facts establish that the Respondent failed to labor faithfully and honestly for the advancement of the pupils in their department and morals, in accordance with Section 231.09(2), F.S., assuming this latter section of the law to be constitutional. Again, the evidential facts spoken of are those established in the events reported in the hearing pertaining to the incident of January 7th, 1976, in which Respondent was driving with an unlawful blood alcohol level and resisted the police without violence. In connection with the events of January 7th, 1976, there is a further allegation of a violation of Section 231.28, F.S. In pertinent part, Section 231.28(1), F.S., states that the license can be suspended in accordance with the following language: * * * "(1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic vio- lation , or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of the law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the re- gulations of the State Board of Education or the school board in the district in which he is employed." In reviewing the language of that section in comparison to the facts established in the events of January 7th, 1976, it is established that Respondent is guilty of a violation of that section because he has plead guilty to driving with an unauthorized blood alcohol level and resisting arrest without violence, which are misdemeanors or other criminal charges, other than minor traffic violations. This activity was also an act involving moral turpitude. No other violations of this section were shown as a result of the matters of January 7th, 1976. Turning to a consideration of the factual matters established in this hearing as it pertains to December 25th, 1976, and in view of the discussion of Section 231.09(2), F.S., pertaining to January 7th, 1976, a violation has been shown. The events of December 25th, 1976, are likewise subject to the caveat pertaining to the case of Meltzer, supra. The events of the arrest and subsequent pleas in Court after the factual events of December 25th, 1976, have shown the Respondent has failed to labor faithfully and honestly to the advancement of pupils and their deportment and morals, by his condition while driving and by his resistance to the authorities who were trying to enforce the laws of the State of Florida. No other violations of Section 231.09, F.S., were shown for the December 25th, 1976 incident. The events of December 25th, 1976, show a violation of Section 231.28(1), F.S., in that the act of the Respondent's driving and resistance to the authorities who were enforcing the laws of the State of Florida were acts involving moral turpitude. Also by the entry of the plea of nolo contendere which the Court accepted in lieu of the guilty plea, the Respondent has been convicted of a misdemeanor other than a minor traffic violation. No other violations of Section 231.28, F.S. were shown for the events of December 25th, 1976. By the guilty plea entered to the offenses of driving with an unlawful blood alcohol level and resistance without violence in the charges of January 7th, 1976, and the nolo contendere plea to the offense of assault on a law enforcement for the events of December 25th, 1976, the Petitioner has made a prima facie proof of grounds for revocation of the Respondent's teaching certificate, as set forth in Section 231.28(3), F.S. These prima facie grounds have not been refuted by the Respondent.
Recommendation In the course of the hearing, certain witnesses testified as to the Respondent's good character and teaching proficiency. These witnesses were various members of the community and members of the staff of the school in which the Respondent teaches and pupils of the Respondent. Although these witnesses were not aware of the events involved in the incidents of January 7th, 1976, and December 25th, 1976, they were nonetheless impressed with Respondent's abilities as a teacher. In considering their testimony and the testimony offered which established the alleged violations, it is
The Issue Whether on or about January 22, 1996, Respondent, Fidel DeLeon, did unlawfully attempt to commit a sexual battery upon Diane Smalley, a person twelve years of age or older, without the consent of Diane Smalley, by attempting to penetrate her vagina with his penis or by attempting to place his penis in union with the vagina and/or mouth of Diane Smalley, and in the process thereof used physical force and violence not likely to cause serious personal injury. Whether Respondent violated the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, in that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers in the State of Florida have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer in Florida by the Criminal Justice Standards and Training Commission on December 7, 1990, and was issued certificate No. 113130. Respondent was employed with the Orange County Sheriff's Office on May 9, 1994. Respondent served as a road deputy during the relevant time-period, working the midnight shift. Dianne Smalley was born on January 7, 1953, and is a person twelve years of age or older. Smalley was employed by the Maitland Police Department as a dispatcher in January 1996, and worked the midnight shift. Smalley met and became acquainted with Respondent approximately a month prior to January 22, 1996. On January 21, 1996, Respondent and Smalley made plans to get together socially after Respondent got off duty. On January 22, 1996, at about two o'clock in the morning, Respondent went to the residence of Smalley and was invited in. When Respondent arrived at Smalley's residence, he was wearing his police uniform, which included a holstered gun. Respondent and Smalley socialized for about 30 minutes while in the residence. During the course of their conversation, Respondent told Smalley that he was married. After telling Smalley he was married, Respondent was asked to leave by Smalley. Respondent did not leave Smalley's residence at that point, but instead Respondent moved closer to Smalley who was sitting on the couch. Respondent pushed Smalley back on the couch, however, Respondent moved forward and kissed her on her neck. Respondent also rubbed his hands all over the body of Smalley. Smalley pushed away Respondent and told him that nothing was going to happen. She got up and walked toward the front door, expecting Respondent to leave. As Smalley moved from the dining room toward the front door, Respondent came up behind her and pushed Smalley back into the living room to where her body was bent forward over the arm of the couch. Respondent stood behind Smalley and, as she was bent over the couch, Respondent held her down by holding her arms and with the weight of his body. Respondent then tried to pull her pants down and pull up her shirt. Respondent unzipped his pants and pulled out his penis. Respondent rubbed his genitals against Smalley's posterior and placed his penis between her legs. Respondent simulated intercourse with Smalley. Respondent tried to put Smalley's hand on his penis but she resisted. Respondent asked Smalley to perform oral sex on him but she refused. Respondent tried to push Smalley's body down to perform oral sex on him, but was unable to because she locked her knees. Respondent then masturbated himself in Smalley's living room and ejaculated on the carpet in the living room. Respondent then let Smalley go and left the residence. During the course of the day, Smalley reported the incident to her roommate. Later that day, Respondent called Smalley on the telephone and apologized for what had happened. Smalley called the Orange County Sheriff's Office after viewing a news broadcast where a rape suspect, who looked similar to Respondent, had gained access to the victim's home by using a police ID. Smalley did not identify herself fully to Detective Volkerson, but identified Fidel DeLeon as a possible suspect because of what he had done to her. Through Respondent's telephone records, detectives were able to identify Smalley as the caller. An investigation was initiated and Smalley cooperated with law enforcement. During the investigation, Respondent gave investigators false and misleading statements. Following the internal investigation, Respondent was terminated from the Orange County Sheriff's Office on August 29, 1996. During the course of the investigation of this matter from January through August 1996, there was insufficient evidence of misconduct by law enforcement which would negate the integrity of the investigation into this matter. Smalley's testimony at the formal hearing was credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order which finds: Respondent guilty of committing attempted sexual battery on January 22, 1996; that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers have good moral character; and revoke the certification of Respondent to be a law enforcement officer in the State of Florida. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of February, 1999. COPIES FURNISHED: Karen Simmons, Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Fidel DeLeon 381 Lake Park Trail Oviedo, Florida 32765 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent's Correctional Certificate No. 164605 should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), seeks to discipline Correctional Certificate No. 164605 held by Respondent, Eric T. Jenkins, on the grounds that in December 1998 he was in possession of more than 20 grams of cannabis, a controlled substance, and he illegally carried contraband (cannibis) onto the grounds of Florida State Prison (FSP) while employed at FSP as a correctional officer. In his request for a hearing, Respondent denied the allegations. Periodically, and without notice, the Department of Corrections (DOC) sends a small contraband interdiction team (team) to various state correctional institutions for the purpose of intercepting contraband that may be covertly brought into the facility by DOC employees or inmate visitors. The team consists of a small number of specially trained DOC employees, including K9 units, and a volunteer Florida Highway Patrol trooper, who assists the team in making arrests. On Sunday, December 20, 1998, a team targeted FSP and arrived on the premises around 5:00 a.m. The inspection lasted until shortly after the last shift of employees reported to work around 4:00 p.m. Besides patting down employees and visitors, the team also searched the vehicles of employees that were parked in the employees' parking lot inside the prison. Respondent worked the last shift that day and arrived shortly before 4:00 p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM 82B." To assist the team in its search, the team used several specially trained dogs (Blue, Smokey, and Thor) who were assigned the task of sniffing parked vehicles for narcotic odors. When a dog recognizes a narcotic odor, it "alerts" or responds to the odor and remains passively in front of the vehicle. After Blue "alerted" at the rear of Respondent's vehicle, a second dog, Thor, was brought to the vehicle and he also responded in the same manner. Respondent was then notified that the team wished to search his vehicle, and he executed a written Consent to Search form ageeing to a search. A search conducted by a DOC officer discovered a latex glove hidden under the front passenger seat of Respondent's vehicle. Inside the glove were two compressed baggies containing approximately 55 grams of a substance that appeared to be cannibis. Laboratory testing by a state chemist confirmed that the substance was indeed cannabis, and that it weighed 51.5 grams. Although the street value of the drugs was only around $275.00, in a prison environment, the drugs had a far greater value. Respondent initially agreed to be interviewed by a Florida Highway Patrol trooper at the prison regarding the contraband. He subsequently had a change of heart and declined to answer any questions. Respondent was then arrested for "drug offenses," booked into the Bradford County Jail, and charged with violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes (1997). However, the disposition of the criminal matter is unknown. In any event, after being arrested, Respondent was immediately terminated from his position at FSP. In mitigation, Respondent has been certified as a correctional officer since June 26, 1996, and there is no evidence that prior disciplinary action has been taken against him. In aggravation, Respondent used his official authority to facilitate his misconduct; he was employed as a correctional guard when the misconduct occurred; Respondent has made no efforts of rehabilitation; Respondent stood to receive pecuniary gain by selling the contraband in the prison; and there are two established counts of violations of the statute requiring that correctional officers maintain good moral character.
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 determining that Respondent has failed to maintain good moral character, as charged in the Administrative Complaint, and that his Correctional Certificate No. 164605 be revoked. DONE AND ENTERED this 29th of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 29th day of June, 2000. COPIES FURNISHED: A. Leon Lowrey, Jr., Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Eric T. Jenkins 1000 Bert Road Jacksonville, Florida 32211
The Issue The first issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011), as alleged in the Administrative Complaint. If so, the second issue for consideration is what penalty should be imposed for such a violation.
Findings Of Fact At all times relevant to this proceeding, Respondent was a certified law enforcement officer, having been issued Law Enforcement Certificate Number 194525 by the Criminal Justice Standards and Training Commission. At the time of the incident in question, Respondent was employed by the FHP. For an unspecified time prior to July 11, 2011, Respondent was involved in a relationship with a woman named Tamarah Rasmussen. For some period, she shared his home with him. However, in the weeks or months preceding July 11, 2011, the couple’s relationship had deteriorated, and Respondent wanted it to end. He had, however, allowed her to remain in the home “as a friend.” On July 10, 2011, the couple had a fight, and Respondent left the house. On July 11, 2011, Respondent returned to the home after his work shift, and told Ms. Rasmussen that he wanted their relationship to end. Respondent told her he wanted to sleep in a separate bed, and took the mattress pad off of a bed in a bedroom downstairs and put it on a separate bed upstairs. Ms. Rasmussen reacted by taking the mattress pad off of the second bed and throwing it out the window. Respondent retrieved the mattress pad. Ms. Rasmussen then poured a container of water on the bed where Respondent intended to sleep. Respondent turned on the video function on his cellular phone and asked Ms. Rasmussen about her actions. She responded by telling him he was a fool and an idiot, and that he was crazy. In what can be gleaned from the tape, Respondent asked her to take her things and leave. Instead, Ms. Rasmussen approached Respondent trying to get his phone as he started to go upstairs, and began hitting him. He can be heard on the cell phone recording repeatedly asking her to stop. Ms. Rasmussen repeatedly answered “no,” and “this was good enough for you last night,” and the sound of her striking Respondent can be heard clearly. This altercation occurred as Respondent attempted to retreat up the stairs. At one point, Respondent exclaimed that Ms. Rasmussen had hit him in the face, and Ms. Rasmussen responds, “yeah, I did.” Respondent and Ms. Rasmussen end up in what appears to be a walk-in closet upstairs. At that point, Respondent told Ms. Rasmussen that she was “going down,” and that he would “arrest her myself.” Respondent appeared to be out of breath. Ms. Rasmussen responded by telling him repeatedly that she was not under arrest and he was not arresting her for anything. She told him several times to stop, and to “get off of her,” stating that she could not breathe. Eventually, she told him that he had won, and asked him to help her up. Ms. Rasmussen testified that Respondent dragged her up the stairs, hitting her head on the stairwell on the way up. She testified further that he slammed her against the wall, handcuffed her behind her back, and was sitting on top of her while he did so, and while she pleaded with him to stop. According to her, Respondent hit her several times during the time they were in the closet, and then dragged her back down the stairs by the chain on the handcuffs. She also stated that Respondent threatened to kill her, saying that if he did so he could dispose of her body in the pond on the property and no one would know unless they drained the pond. Respondent, on the other hand, testified that Ms. Rasmussen began hitting him around the head and neck, and he was retreating up the stairs in an effort to get away from her, telling her repeatedly to stop. He testified that once they reached the closet, he told her he was arresting her and placed her hands behind her back in order to handcuff her. When she told him he was not arresting her for anything, he warned her not to “make me Taze you,” and finished placing the handcuffs on her wrists, behind her back. Respondent denied sitting on Ms. Rasmussen, saying that he knelt on one knee with one foot flat on the floor, and with Ms. Rasmussen secured between his legs, as he learned in law enforcement training. While Ms. Rasmussen testified that he dragged her down the stairs of the house and then threw her down the outside steps, Respondent testified that he carried her down the stairs of the home so as not to injure her, but that she was resisting him. While the taped recording contained sounds indicating that Respondent was being hit by Ms. Rasmussen going up the stairs, the same is not true with respect to the descent. Ms. Rasmussen can be heard telling Respondent to stop, but there is no sound that can be attributed to her head banging against the wall or anyone being dragged down the stairs. Once they were both downstairs, Respondent called in a “1024” on his FHP radio, which means “officer in jeopardy, send help as soon as possible.” The consensus of those officers testifying was that this call is rarely used and is the equivalent of “calling the calvary,” because the officer needs help immediately. Both Rasmussen and Respondent exited the home once the 1024 call was placed. Rasmussen testified at hearing that Respondent offered to take the handcuffs off of her and she refused the offer, saying that she wanted the responding officers to “see me exactly this way.” She got in his truck, which was parked near his locked law enforcement vehicle, and shut the door to get out of the rain. Law enforcement responding to the 1024 call were Marcus Bailey, an investigator with the Bay County Sheriff’s Office; FHP Major Eddie Johnson; and Lieutenant Davis Ward of the Bay County Sheriff’s Office. Their arrival at the home was approximately twelve minutes from the call being received by the FHP dispatcher. The Bay County Sheriff’s Office conducted the investigation of the matter, and because a law enforcement officer was involved, the investigation was conducted by supervisors. As a result of the incident, Respondent was placed on administrative duty on July 11, 2012, and terminated from the FHP July 16, 2012. The officers who responded all saw the video of the cell phone recording, which was also played several times during the course of the hearing. While, curiously, two of the three refer to Respondent as “taunting” Ms. Rasmussen at the beginning of the video, the video does not display or record anything that the undersigned could describe as taunting. It portrayed Respondent expressing dismay at Ms. Rasmussen’s behavior; Respondent requesting that she get her things and leave; Ms. Rasmussen’s angry response; the sounds of Ms. Rasmussen hitting Respondent; Responding placing her under arrest and reciting her rights; and Ms. Rasmussen’s angry response and cries for help and for Respondent to let her go. Respondent’s supervisor, Sergeant Ronnie Baker, testified that Respondent was a great employee who went “above and beyond,” and who prior to this incident (which Sergeant Baker did not witness), had no complaints against him. Sergeant Baker, among others, testified that Ms. Rasmussen had a reputation for untruthfulness. The undersigned reviewed the tape several times. It is of limited assistance in deciphering what is, in reality, an event where the only witnesses are the participants, Respondent and Ms. Rasmussen. However, after listening to the tape and observing the demeanor of witnesses (both at hearing and in the tape), Ms. Rasmussen’s account of the incident is simply not credible. The sounds on the tape clearly support the testimony that Ms. Rasmussen was hitting Respondent repeatedly as they went up the stairs. There are no corresponding sounds to support her contention that he slammed her head into the wall or dragged her down the stairs. Moreover, the pictures of Ms. Rasmussen do not clearly depict bruising or swelling consistent with her description of the incident. There are slight red marks on Ms. Rasmussen’s wrists, but they do not provide clear and convincing evidence that he dragged her anywhere, much less down the stairs. The marks on her arms are just as likely to indicate her resisting his efforts to carry her down the stairs. Moreover, her claim that he threatened to kill her and dispose of her body in the pond on the property is totally inconsistent with Respondent’s actions in placing a 1024 request for assistance, and waiting at the front of the property for assistance to arrive. The Administrative Complaint charges Respondent with use of excessive force by slamming Ms. Rasmussen’s head and/or placing handcuffs on the victim tightly and/or dragging her down the stairs while handcuffed. There is no clear and convincing evidence that Respondent slammed Ms. Rasmussen’s head against anything; that he put the handcuffs on her too tightly; or that he dragged her down the stairs while handcuffed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of January, 2013, 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 29th day of January, 2013. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Philip S. Spaziante (Address of record) Sandra Renee Coulter, Esquire Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Mr. Mirvis is eligible to receive a Florida teacher's certificate.
Findings Of Fact Laurence Mirvis completed an application for a Florida teacher's certificate on January 23, 1989, which the Department received on January 27, 1989. In 1981, Mr. Mirvis was charged in the circuit court with carrying a concealed weapon by the state attorney in Martin County, Florida, in the case styled State of Florida v. Larry Mirvis, Case No. 80-751CF. The matter was refiled as a misdemeanor prosecution in the county court, as State of Florida v. Mirvis, Case No. 80-19232MM. Mr. Mirvis was found guilty by the county judge based upon plea of guilty he entered after discussing the matter with his attorney, was sentenced to 60 days in the county jail, one year of nonreporting probation conditioned upon leaving Martin County. A little over three years later, on January 22, 1984, Mr. Mirvis was arrested in Delray Beach, Florida for threatening an employee at a convenience store who had followed Mr. Mirvis into the parking lot because he believed Mr. Mirvis had taken items from the store without paying for them. In the parking lot Mr. Mirvis had pointed a handgun at the employee and then fled. On August 7, 1985, Mr. Mirvis was adjudged guilty of carrying a concealed firearm, a third degree felony, in violation of Section 790.01(2), Florida Statutes, upon entering a plea of guilty. He was sentenced to time served.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Commissioner of Education denying the application of Laurence Mirvis for a Florida teacher's certificate. DONE and ENTERED this 12th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 12th day of February, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurence Mirvis Post Office Box 6821 Delray Beach, Florida 33484 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, #301 Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street, Room 352 Tallahassee, Florida 32399 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
