The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake." During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 2Oth day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202 Miami, Florida 33172-2108 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On February 6, 1992, Respondent received Petitioner's application for a Class "D" Security Officer License. In processing the application, Respondent conducted a criminal background check on Petitioner and received his criminal history as compiled by the Federal Bureau of Investigation (FBI). By letter dated July 24, 1992, Respondent informed Petitioner of its intent to deny his application for licensure based upon grounds cited in the letter. On August 17, 1992, Respondent received Petitioner's request for a formal hearing and his explanation for the various arrests cited in the denial letter. On August 14, 1992, Respondent mailed Petitioner an amended denial letter citing additional grounds for the denial of his application. Respondent asserts that it is within its discretion to deny Petitioner's application because his criminal history reflects a lack of good moral character. All other grounds for denial of licensure of Petitioner were abandoned by Respondent at the formal hearing. The following arrests are cited by Respondent as justifying its denial of licensure to Petitioner. CHARGE ONE On August 21, 1968, Petitioner was arrested on charges of aggravated assault and forgery in Dyersburg, Tennessee. In 1968, Petitioner was discharged from the Army after having served in Viet Nam. He accompanied a friend he had met in the Army to Dyersburg, Tennessee, where he became involved in an altercation with someone who tried to run him off the road while he was riding his motorcycle. The person who tried to run Petitioner off the road stopped and attempted, without success, to hit Petitioner with a tire iron. Petitioner took the tire iron away from this person and hit the person on the head with the tire iron. Petitioner was arrested for aggravated assault and placed in the county jail. At the same time, he and two companions were charged with forgery for purchasing beer with worthless bank checks. Petitioner was told that he would not be tried until after the grand jury convened, and that he would have to wait in the county jail in the interim, a period of four months. Petitioner escaped from the county jail with the help of two other inmates and made his way to Chicago, Illinois. He was subsequently arrested and returned to Tennessee after he waived extradition. Petitioner was thereafter tried and convicted of aggravated assault, forgery, and grand theft and sentenced to three years imprisonment. On January 30, 1970, Petitioner's grand larceny conviction was reduced to a misdemeanor charge of attempt to commit a felony. His three year sentence was commuted and he was granted parole and immediately released after having served eighteen months in jail. Petitioner received a pardon from the governor of Tennessee for the felony convictions resulting from the 1968 arrests. CHARGE TWO In 1973, Petitioner was arrested and convicted of drunk driving in California and placed on probation. On August 2, 1974, in Palm Springs, California, Petitioner was arrested and charged with suspicion of burglary, a violation of California Penal Code 459. His probation from the 1973 conviction was violated, and he was sentenced to sixty days in jail and given two years of probation. The charge of suspicion of burglary was reduced to trespassing. Petitioner was intoxicated and was trespassing when arrested in August 1974. Petitioner testified without contradiction that he was not attempting to steal anything. CHARGE THREE In September 1980 in Riverside, California, Petitioner was arrested and charged with possession of a device for arson. Petitioner had been threatened by a gang after he identified a gang member as having stabbed a member of another gang. When three carloads of gang members came to his place of residence to threaten him, Petitioner made a Molotov cocktail and threw it in the street to disperse the gang members and to get the attention of the police. This charge was subsequently dismissed. CHARGES FOUR AND FIVE On May 13, 1988, Petitioner was arrested in Chicago, Illinois, and charged with unlawful use of a weapon and aggravated assault. On July 26, 1988, he was charged with aggravated assault; unlawful use of a weapon/gun; unlawful use of a weapon/tear gas; unlawful use of a weapon/blackjack; and failure to register a firearm. These arrests resulted from Petitioner's attempts to reduce drugs and prostitution in his neighborhood as a pro-active vigilante. On May 13, he fired two warning shots from a .25 caliber pistol into the ground to discourage three would-be attackers. Though the assailants left, an eyewitness filed a complaint with the police which resulted in Petitioner's arrest. On July 26, 1988, Petitioner was arrested while again acting as a vigilante by the same officer who had arrested him on May 13. He had on his person at the time of his arrest an unregistered firearm, a blackjack, and mace. These charges were dismissed when the arresting officer failed to appear in court. CHARGE SIX Petitioner heard threats against himself and his family because of his efforts to cleanup his neighborhood. On February 3, 1989, Petitioner went to a bar which the people who had been threatening him frequented. He confronted these persons and fired four shots from a .357 firearm into the ceiling. Petitioner was charged with criminal damage to property, reckless conduct, and unlawful use of a weapon. The charge of criminal damage to property was dismissed, but he was found guilty on the other two charges. Petitioner was given a conditional discharge and ordered to pay $264.00. The conditional discharge was revoked in June 1990. CHARGE SEVEN On May 18, 1989, Petitioner was arrested in Chicago on a traffic violation and charged with resisting or eluding an officer. Petitioner was intoxicated and was driving around setting off firecrackers in the street when the police attempted to pull him over. Because he could not find a place to stop, he circled the block a few times before stopping the car. He was adjudicated guilty and had his driver's license revoked for three years. REHABILITATION Petitioner is an alcoholic, and his arrests can be attributable, in part, to the influence of alcohol. Petitioner has been an active participant in the Miami, Florida, Veterans Affairs (VA) Medical Center Substance Abuse Clinic since October 11, 1989, and has consistently abstained from alcohol since September 7, 1989. Since 1989, Petitioner has lived and worked in Florida. Petitioner has no criminal record since moving to Florida in 1989 and enrolling in the VA substance abuse program. Petitioner has worked for Kent Security since January of 1991, and his employer considers Petitioner to be an outstanding employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which grants Petitioner's application for licensure as a Class D Security Officer. DONE AND ORDERED this 3rd day of February, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of February, 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Division of Licensing The Capitol MS 4 Tallahassee, Florida 32399-0250 Mr. James J. Killacky #206 1660 Northeast 150th Street North Miami, Florida 33181 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 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 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (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 The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Tanika Parker was certified as a correctional officer in the State of Florida by the Criminal Justice Standards and Training Commission on September 9, 2005, and was issued correctional certification number 251547. (admitted fact) From August 13, 2004, until July 13, 2006, Respondent was employed as a correctional officer by the Florida Department of Corrections and was assigned to the Dade Correctional Institution. (admitted fact) On January 9, 2006, Respondent applied for a correctional officer position with the Palm Beach County Sheriff's Office. (admitted fact) On March 10, 2006, as part of the Palm Beach County Sheriff's Office application process, Respondent answered the written question: "Have you had an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee [sic]?" by circling on the form as her response: "No." (admitted fact) Also during March 2006, George Montenegro, a Senior Inspector in the Department of Corrections Inspector General's Office assigned to the Dade Correctional Institution, received information from a confidential informant that Respondent "was involved with" an inmate with the nickname of "Plump." Although an investigation was begun, it was not until early July when a second confidential informant disclosed the identity of Plump. It was inmate Leroy Rogers. Thereafter, Plump's phone calls were monitored, and his cell was searched on July 21, 2006. Among other items in Plump's cell were 34 photographs. At that point Respondent had resigned and was no longer an employee of the Department of Corrections. Since Respondent was in the process of being hired by the Palm Beach County Sheriff's Office, Inspector Montenegro contacted that agency and spoke with Eric Monath, a Sergeant with the Palm Beach County Sheriff's Office Division of Internal Affairs. The 34 photographs taken from Plump's cell included the following: one of a cake inscribed "Happy Birthday Plump"; one with a little girl licking the icing off the cake knife; two of the front of Respondent's residence with the little girl in front; eleven more of the little girl at various locations; one close-up of an adult female's breasts; six close-ups of an adult female's naked genitalia; eight of an adult female's genitalia and/or buttocks either partially or fully covered by underwear; one of a T-shirt decorated with two hearts, one of which was inscribed "Plump" and the other one "Plumpness"; and three of a woman in that T-shirt, wearing some of the same underwear depicted in some of the other pictures. The photos of the naked or clothed woman do not show the woman's face, head, or neck. They only focus on a particular part of the female's anatomy. One of the pictures, however, shows the female from behind with her hands on her hips, and that one reveals a scar or discoloration on the woman's left, inside forearm. On July 27, 2006, Respondent attended an orientation session at the Palm Beach County Sheriff's Office, wearing a sleeveless shirt. Sergeant Monath saw that same identifying mark on Respondent's forearm. On August 1, 2006, Sergeant Monath met with Inspector Montenegro at the Walgreen's near Respondent's residence and presented the photos with the identifying Walgreen's information on the back of each one to the store's manager. The store manager confirmed that the identifying information was for that store and, using it, checked the store's computer records. The customer for whom the photographs were developed was Respondent. Inspector Montenegro and Sergeant Monath then drove to Respondent's residence and compared the front of the structure to the structure depicted in the photographs. It was the same, including the location of the sprinkler head in the front yard. The monitored phone calls made by Plump were to a female who was never identified in the phone calls. However, during one of the calls, the female yelled instructions to someone in the background named Taliyah. Respondent's application for employment by the Palm Beach County Sheriff's Office listed as the only person living with her, her daughter Taliyah Wilcox. Inmate Rogers' visitor log shows that Respondent visited him thirteen times between November 4, 2006, and July 7, 2007. She listed herself as a "personal friend."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her correctional certificate numbered 251547. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 September, 2007. COPIES FURNISHED: George G. Lewis, Esquire George G. Lewis, P.A. 950 South Pine Island Road, Suite 150 Plantation, Florida 33324 Sharon S. Traxler, Esquire Department of Law Enforcement - 7100 Post Office Box 1489 Tallahassee, Florida 32304 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the offenses of malicious harassment, unlawful battery (two counts), and unlawful entry of a structure (two counts) as set forth in the Administrative Complaint dated October 17, 1997. Whether Respondent has failed to maintain good moral character, and, if so, what disciplinary action should be taken against his correctional officer's certification.
Findings Of Fact Christopher Horne (Respondent), was certified by the Criminal Justice Standards and Training Commission on September 29, 1989, as a correctional officer, and was issued Correctional Certificate Number 70581. Respondent was employed by the Orange County Sheriff's Office, Department of Corrections, as a correctional officer during the period of October 1, 1990, until his termination on November 14, 1997. Patricia Johnson is currently employed with the Orange County Sheriff's Department of Corrections as a correctional officer and has been employed as such for the past twelve years. She is certified by the Criminal Justice Standards and Training Commission as a correctional officer. Johnson first met Respondent in the summer of 1993 at work. They became friends and eventually began dating each other in a boyfriend-girlfriend relationship. This relationship continued for approximately two and a half years, until Johnson made the decision to end it. Johnson told Respondent on New Year's Eve 1995 that their relationship was over. Johnson began dating another man. When Respondent found out that she was dating someone else, he began calling her repeatedly at work and at home. Respondent continued to harass Johnson by calling her late at night and by driving repeatedly past her home at night. This behavior began in January 1996 and continued through August 1996. The Respondent used abusive language when speaking with Johnson. He threatened harm to her date, if he found her with someone. Johnson was afraid of Respondent and was afraid that he might harm her. On July 21, 1996, Respondent went to Johnson's home unannounced and knocked on her door. When Johnson opened the door and saw who it was, she told Respondent to leave. He did not; instead he pushed his way into her home, physically struggled with her, and eventually pushed her onto her bed. Respondent pinned her down with his knees and threatened her. Johnson repeatedly told him to leave her home. Respondent eventually left the house. Johnson reported Respondent's actions to the police. They documented the incident in a report. She told the police that she did not want to press charges against Respondent, but did want someone to talk to him about his actions. The police contacted Respondent and discussed the incident with him, but did not arrest him. On November 10, 1996, at approximately 3:30 a.m., Johnson received a phone call at her house from a person she believed to be her brother. The person told her that he had forgot his keys and asked to be let into the house. A short time later, there was a knock at the door. When Johnson opened the door, Respondent was standing there. He said, "Bitch let me in" and proceeded to push his way into her home. He then grabbed her hair and hit her head against the wall several times. He continued to pull her hair and push her up against the wall. She begged him to leave and told him to stop hitting her. She broke free and ran to her brother's room and started banging on the door. Her bother, Bobby Hunter, came out. Johnson told him that she wanted Respondent out of her house. Her brother asked Respondent to leave. Eventually, Respondent did leave without further physical confrontation. Johnson reported the incident to the police. After investigating the incident, the police completed a report and arrested the Respondent. Respondent was charged with burglary, battery, and aggravated stalking. Respondent pled in circuit court to the misdemeanor charge of trespass to an occupied dwelling and was placed on one- year probation. Respondent was suspended for 10 days from his employment with the Orange County Sheriff's Department of Corrections as a result of his actions involving Johnson. He was later terminated from his employment on November 14, 1997. Respondent is currently not employed as a correctional officer. Respondent's description of the events from January 1996 through August 1996 and on the night of November 10, 1996 is not credible. On December 11, 1992, the Criminal Justice Standards and Training Commission issued an official Letter of Guidance to the Respondent. This prior action by the Commission is an aggravating factor in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission find Respondent guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and it is further RECOMMENDED that Respondent's certification be revoked. DONE AND ENTERED this 15th day of June, 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 15th day of June, 1999. COPIES FURNISHED: James D. Martin Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Warren Turner, Esquire 609 East Pine Street Orlando, Florida 32802 A. Leon Lowry, II, 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 The issues in this case are whether Respondent committed a battery on another person and thus failed to maintain good moral character, as alleged in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with certifying persons as correctional officers in Florida. § 943.12, Fla. Stat. (2009).3 Pursuant to section 943.1395, Petitioner is authorized to take disciplinary action against persons certified as correctional officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer. She became certified in 2007, and currently is certified. She was not employed as a correctional officer at the time of the alleged battery that is the subject of this proceeding.4 On July 24, 2009, Corporal Jesus Alonso of the Collier County Sheriff’s Office, a uniformed patrol deputy in the Immokalee substation, was dispatched to a residence at 857 Cucumber Lane, Immokalee, to investigate a matter for which the Sheriff’s Office had received a call. At that time, Respondent’s mother lived at that address. There, Corporal Alonso made contact with Mr. Miguel Rua, who was waiting outside of the house. Respondent was inside the house when Corporal Alonso arrived. Mr. Rua is Respondent’s ex-boyfriend and the father of their two daughters. Their daughters were ages four and six years at the time of the alleged battery. Respondent and Mr. Rua previously had resided together as a family. Corporal Alonso testified that Mr. Rua told him he had gone to the residence with his sister-in-law,5 and that Respondent had become upset with him and hit him on the left side of his head with a phone. Corporal Alonso observed a reddish discoloration in the temple area on the left side of Mr. Rua’s head. He took three photographs of Mr. Rua, consisting of a full body photograph, a profile of the left side of Mr. Rua’s head, and a close up of Mr. Rua’s left temple showing an area of reddish discoloration. Corporal Alonso took Mr. Rua’s sworn statement regarding the alleged incident. Corporal Alonso arrested Respondent on the charge of battery. He concluded that Respondent had committed a battery on Mr. Rua, based on Mr. Rua’s sworn statement, his observation of the discolored area on Mr. Rua’s left temple, and his determination that Respondent was trying to avoid being detained because she was inside the house when he arrived. Corporal Alonso did not take Respondent’s sworn statement before arresting her. Corporal Alonso was not present at 857 Cucumber Lane at the time the alleged battery took place. He did not observe the alleged battery, and there is no evidence that he had personal knowledge of any events comprising or surrounding the alleged battery. He conceded that that he could not determine how the mark on Mr. Rua’s head was made.6 Mr. Rua also testified regarding the events of July 24, 2009. He arrived at 857 Cucumber Lane, Immokalee, with his sister-in-law, in his brother’s car. He saw his daughters outside of the house, so got out of the car to talk to them. He testified that Respondent came out of the house yelling at him, and they argued. Mr. Rua testified that he got back into the car, in the front passenger’s side, and that Respondent came up to the car window and tried to punch him through the window. He testified that she hit him on the left side of his forehead with a white wireless house phone, then went back into the house. He testified that the blow was painful and became swollen and red. He called the Collier County Sheriff’s Office. Respondent also testified regarding the events of July 24, 2009. According to Respondent, Mr. Rua arrived unannounced at 857 Cucumber Lane, Immokalee. An argument ensued between them, and profanity was used in front of their daughters. Respondent testified that she told Mr. Rua to leave, but he refused and said he was going to “call the cops.” Respondent testified that was fine with her, because she believed they would make him leave. She took her daughters back into the house and stayed inside with them, while Mr. Rua stayed outside. When the Collier County Sheriff’s Office law enforcement officer arrived, he went into the house and arrested her for the battery of Mr. Rua. Respondent testified that she tried to tell her side of the story but the officer did not take her sworn statement. Determination of Ultimate Facts Upon considering the credibility of each witness in conjunction with the photographs of Mr. Rua that were taken by Corporal Alonso on July 24, 2009, the undersigned determines that Petitioner has not sustained its burden to prove, by clear and convincing evidence, that Respondent committed a battery on Mr. Rua and thus failed to maintain good moral character. Respondent’s testimony regarding the events of July 24, 2009, was credible and persuasive. By contrast, Mr. Rua’s testimony was not convincing, and thus insufficiently persuasive, because it is inconsistent with the photographic and other evidence in the record. Specifically, the photographs taken by Corporal Alonso show a discolored mark on Mr. Rua’s left temple, and Mr. Rua and Corporal Alonso both testified that the mark was on Mr. Rua’s left temple. However, if, as Mr. Rua testified, he was seated in the front passenger’s side of his brother’s car when Respondent punched him through the window, then the right side of his head——not the left side——would have been facing the car window and thus been exposed to the blows. In any event, there is no evidence in the record to explain the apparent discrepancy between Mr. Rua’s testimony regarding his and Respondent’s relative locations during the alleged battery, and the location of the mark on the left side of his head. Corporal Alonso’s testimony does not buttress Mr. Rua’s testimony. He was not present at the time of, and has no personal knowledge of, the alleged battery. He conceded that he did not know how Mr. Rua sustained the mark on his left temple. Corporal Alonso’s testimony authenticated the photographs he took of Mr. Rua; however, because he lacked personal knowledge of Mr. Rua’s injury, his testimony is not persuasive with respect to whether Respondent caused that injury by committing a battery on Mr. Rua. Corporal Alonso’s testimony regarding his belief that Respondent went back into the house to avoid being detained is merely conjectural and not persuasive in determining whether Respondent committed a battery on Mr. Rua. Respondent’s testimony to the effect that she went back into the house following the argument to avoid further conflict with Mr. Rua provides a reasonable and credible explanation for why she was not outside the house when Corporal Alonso arrived, and hence has been accepted as truthful. Based on the greater weight of the evidence in the record, the undersigned determines, as a matter of ultimate fact, that Respondent did not commit a battery on Mr. Rua. Accordingly, the undersigned determines, as a matter of ultimate fact, that Respondent did not fail to maintain good moral character in violation of sections 943.1395(7) and 943.13(7).
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 6th day of September, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of September, 2011.
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
