Findings Of Fact For purposes of the Motion, the following allegations contained in the petitions are accepted as true: Albert Figueroa is an approved visitor for an inmate in the custody of the Florida Department of Corrections. Albert Figueroa regularly visits an inmate under the custody of the Florida Department of Corrections. Jaylin Figueroa has a brother in the custody of the Florida Department of Corrections. Jaylin Figueroa regularly visits with this brother. Martin Glick is on the Florida Department of Corrections approved visitor list for an inmate in its custody. Imposition of visitation restrictions upon an inmate, including indefinite suspension of these privileges, would affect the Petitioners’ visitation of that inmate.
The Issue The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
Findings Of Fact Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988. On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code. Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms. Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility. Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection. On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem. Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection. Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140. ENTERED this 1st day of August, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 1st day of August, 1989. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 911 Orlando, Florida 32801 Hilton J. Soto 6501 Palmetto Drive Winter Park, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Hilton J. Soto Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765 =================================================================
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue Whether Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Darryl James McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing inmate visitation and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides: Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Petitioner, a married male inmate, has made requests to have females, by whom he has had children and who have custody of those children, placed on his visiting list. The females by whom the Petitioner has children are his current wife, his former wife and a girlfriend. Those requests have been denied by the Respondent. The Petitioner has attempted to add his former girlfriend and his former mother-in-law to his visiting list. His former wife and all of his children are currently on his visiting list. His current wife was not on his visitor list because she was also incarcerated at the time of the final hearing. The Petitioner has suggested that he has been denied visitation with his children by his former wife and his current wife that he is unable to see because of his inability to have more than one female visitor. The Petitioner's former girl friend was offered a special visitor's pass which was limited to week days but, due to her employment, did not visit the Petitioner. Although the evidence proved that the application of the Challenged Rule to the Petitioner and the Petitioner's circumstances make it difficult for the Petitioner to have visitation with some of his children, the evidence failed to prove that the Challenged Rule itself bars married inmates from having visitation with minor children from other marriages or relationships. The Respondent promulgated the Challenged Rule to limit the number of female visitors a married inmate may have for the following reasons: Male inmates tend to request visitation from more females than males. Due to limited space for visitation, the increasing number of inmates at every institution and the burden placed on the staff of the correctional institutions to handle visitation, the number of visitors had to be limited. Each visitor has to have a local law enforcement background check and each visitor must be checked by staff before visitation. Visitation is generally allowed between 9 and 3 on visiting days but visitors may all show up at essentially the same time. There is limited staff to handle the checking of visitors and the supervision of the visitation area.
The Issue Whether Rules 33-3.0081(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck, Mike Ramadanovic and Kenneth Boudreaux, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules challenged in these cases, Rules 33-3.0081(9)(l), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code (hereinafter referred to as the "Challenged Rules"). Petitioner Van Poyck is on death row, which is considered administrative confinement. All exercise privileges for Petitioner Van Poyck have been suspended for almost three years. Petitioner Ramadanovic at the time of the final hearing was in close management confinement. All exercise privileges for Petitioner Ramadanovic have been suspended for almost one year. Petitioner Bourdreaux at the time of the final hearing was in close management confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rules. Rule 33-3.0081(9)(l), Florida Administrative Code, governs exercise of inmates who have been placed in "administrative confinement". Administrative confinement is the removal of an inmate from the general inmate population for one or more specified reasons. Rule 33-3.0081(1), Florida Administrative Code. Rule 33-3.0081(9)(l), Florida Administrative Code, provides the following: (l) Exercise -- Those inmates confined on a 24-hour basis excluding showers and clinic trips may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule shall be implemented to ensure a minimum of two hours per week of exercise out of doors. Such exercise periods shall be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. The superintendent or assistant superintendent may restrict exercise for an individual inmate when the inmate continues to pose a serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates; by involvement in acts which seriously interfere with the staff's daily security functions, or by actions demonstrating an extreme escape risk. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for the shortest length of time to accomplish the goal of safety, security and order within the institution and shall be documented on Form DC4-814. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not compromise the safety or security of the institution. Rule 33-3.0083(9)(i), Florida Administrative Code, governs exercise of inmates who have been placed in "close management". Close management is the "long-term single cell confinement of an inmate apart from the general inmate population, where the inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0083(1), Florida Administrative Code. Rule 33-3.0083(9)(i), Florida Administrative Code, provides the following: Exercise -- Those inmates confined on a 24-hour basis, excluding showers and clinic trips, may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule should be implemented to ensure a minimum of 2 hours per week of exercise outside of cell. Such exercise periods will be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not threaten the safety or security of the institution. Rule 33-3.0084(1)(n), Florida Administrative Code, governs exercise of inmates who have been placed in "disciplinary confinement". Rule 33-3.0084(1)(n), Florida Administrative Code, provides the following: (n) Exercise -- Those inmates confined on a twenty- four hour basis (excluding showers and clinic trips) may exercise in their cells. However, if confinement extends beyond a thirty-day period, an exercise schedule should be implemented to ensure a minimum of two hours per week of exercise outside of the cell. Such exercise periods should be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts show that such exercise periods should not be granted. Restrictions may also be placed on the exercise periods by medical staff. The reason for any exercise restrictions shall be documented. Period of Outdoor Exercise. The Challenged Rules all provide that inmates may exercise in their cells and that "a minimum of two hours per week of exercise outside of the cell" should be provided to inmates in administrative confinement, close management and disciplinary confinement. Unless specified otherwise, all references to "inmates" in this Final Order are to an inmate in administrative confinement, close management or disciplinary confinement. At Florida State Prison, non-death row inmates subject to the Challenged Rules are given an opportunity to attend one, two-hour exercise session a week. If an inmate misses a session for medical or attorney "call out", a holiday or inclement weather, the session is not made up. The Challenged Rules do not specifically require that missed sessions be made up. On their face, the Challenged Rules provide that two hours of exercise should be provided without indicating any exceptions. Rule 33-3.0081(9)(l), Florida Administrative Code, is mandatory: two-hours of exercise must be provided each week. The amount of time inmates are allowed to exercise is affected by the budget and staff of the Respondent. Because of lack of funds and staff, the Respondent is not able to provide more exercise time to non-death row inmates subject to the Challenged Rules. At Florida State Prison, a maximum security prison, there are thirteen wings housing inmates. Ten wings house inmates (including four housing inmates on death row) in various types of confinement status. Nine of the ten wings have a separate area, referred to as a "yard", in which inmates may exercise outdoors. There are two correctional officers on duty at each of the yards during the outdoor exercise period for non-death row inmates subject to the Challenged Rules. One sergeant also rotates between the yards. Four to five correctional officers are required to take inmates in and out of the yards. Each inmate must be strip searched, handcuffed with his hands behind his back and then escorted into the yard. Exercise Yards. The Challenged Rules do not specify the size of the area in which outdoor exercise to be provided to inmates. The Challenged Rules also do not specify the number of inmates that may be placed in an area for outdoor exercise. Yards at Florida State Prison consist of a fenced concrete slab. The yards for non-death row inmates are approximately 24' by 33', or 792 square feet. Usually 17 inmates are placed in the yard next to the inmates' wing at a time. The number of inmates in the yard on occasion may be 20 to 25. This is the exception, rather than the rule. Recreational Equipment. The Challenged Rules do not require that recreational equipment be provided to non-death row inmates. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, provide that recreational equipment may be available for the exercise period if it does not compromise the safety or security of the institution Rule 33-3.0083(9)(i), Florida Administrative Code, is silent concerning recreational equipment. Recreational equipment is not provided to inmates during exercise at Florida State Prison. Inmates tend to fight over recreational equipment and to abuse it when it is provided. In light of the findings of fact, infra, concerning death row inmates, the evidence failed to prove that the failure to provide non-death row inmates with recreational equipment is arbitrary or capricious. Although there is a rational and reasonable reason for not providing recreational equipment to inmates who have proven to be a disciplinary problem (including some death row inmates) the Respondent is evidently prohibited from withholding recreational equipment for death row inmates by court decree. No such decree applies to non- death row inmates. Yard Suspension. The Challenged Rules provide that exceptions to the provision for outdoor exercise may be made "only when clear and compelling facts can document such exercise periods should not be granted." Rule 33-3.0083(9)(i), Florida Administrative Code. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, contain very similar language. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, do not specify who may decide who is to be denied exercise in the yard, referred to as being placed on the "yard suspension list", or the specific reasons for placing an inmate on such a list. The various institutions are given discretion to decide who will place an inmate on the yard suspension list and the reasons for such suspensions. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, also do not specify the procedures for placing an inmate on the yard suspension list, do not require periodic review of the list, do not specify a maximum period of time an inmate may be on the list and do not specify the conditions which must be met for an inmate to be removed from the yard suspension list. Rule 33-3.0081(9)(l), Florida Administrative Code, provides who may restrict exercise, requires that there be a "serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates" and other acts, requires that inmates be notified in writing and provides that denial of exercise be for the shortest length of time possible. There is a list of inmates at Florida State Prison who have been denied yard exercise. Inmates are placed on the yard suspension list because of security problems similar to those specified in Rule 33-3.0081(9)(l), Florida Administrative Code, caused by an inmate. The procedure for placing an inmate on the yard suspension list is as follows: The chief security officer recommends that an inmate be placed on the list. The recommendation of the chief security officer is reviewed by a team of senior correctional officers and the superintendent. The superintendent makes the final decision of whether an inmate is placed on the yard suspension list. Any inmate placed on the list is notified in writing and may appeal the decision through the grievance procedure. Chapter 33-29, Florida Administrative Code. The following procedure is followed to determine whether an inmate is removed from the yard suspension list: The list is reviewed monthly by the team of senior correctional officers that recommends the placement of an inmate on the list. If an inmate's behavior demonstrates that he has adapted to the institution and is no longer acting out in such a manner to create a security problem, a recommendation is made to the superintendent to remove the inmate's name from the list. The superintendent makes the final decision of whether an inmate's name is removed. Inmates are placed on the yard suspension list for the shortest period of time necessary to accomplish the goal of changing the inmate's behavior and to eliminate the threat to security caused by the inmate. Inmates on the yard suspension list are still allowed to exercise in their cells. Although cells are small and exercise is not necessarily easy in the cells, inmates may do elevated push-ups, step-ups, and jog in place. There are at any given time approximately 100 inmates at Florida State Prison on the yard suspension list. Inmates may be kept on the yard suspension list for years. Inmate Jimmy Stephens has been on the yard suspension list since February, 1990, and was previously on the yard suspension list for over fifteen years. Petitioner Van Poyck was placed on the yard suspension list upon his arrival at Florida State Prison on December 28, 1988, and remained on the list until January 7, 1992. Death Row Inmates. Inmates on death row are in administrative confinement and are, therefore, subject to Rule 33-3.0081(9)(l), Florida Administrative Code. Inmates on death row are provided two, two-hour exercise sessions each week. A total of four hours of exercise. If an exercise session is missed by a death-row inmate, the session is made up. The yards provided to death row inmates are larger than the yards provided to non-death row inmates. The yards for death row inmates at Florida State Prison are 71' by 69' (4,899 square feet), 80' by 64' (5,120 square feet), 62' by 91' (5,642 square feet) and 74' by 80' (5,920 square feet). Approximately 24 to 30 death row inmates are placed in the yard next to the inmates' wing at a time. Death row inmates are provided with a variety of recreational equipment. The amount of exercise time, the size of the yards and the amount of recreational equipment provided to death row inmates was agreed to in a consent decree in a federal court proceeding involving the Department of Corrections.
Findings Of Fact Petitioners Gary M. Piccirillo ("Piccirillo"), Douglas L. Adams ("Adams"), and George Crain ("Crain") each are inmates who are presently incarcerated and within the custody of Respondent, Department of Corrections. At the time of final hearing in this cause, each of the Petitioners was incarcerated in Union Correctional Institution, Raiford, Florida. At the time of final hearing in this cause, both Petitioner Adams and Petitioner Crain had been classified as "close custody" in accordance with the provisions of Rule 33-6.09(4), Florida Administrative Code. Petitioner Piccirillo had been classified as "medium custody" in accordance with that same rule. The custody status of each of these inmates had been reviewed and established within the last six months prior to final hearing. In addition to challenging the validity of Rule 33-9.07(4), Florida Administrative Code, Petitioners also challenge the validity of Department of Corrections' Policy and Procedure Directive No. 4.07.40 issued April 27, 1977, and revised March 10, 1982, as an unpromulgated rule. Specifically, Petitioners contend that Section IXB conflicts with certain provisions of Section 945.091, Florida Statutes, and is, therefore, invalid. Specifically the Policy and Procedure Directive in the above referenced section provides that: The department will permit considera- tion for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or [sic]. . . .
Findings Of Fact At all times here relevant Shirley R. Bennett was employed by DHRS as a Detention Care Worker I. In August 1982 Bennett was injured at work while breaking up a fight between two inmates at the Detention Center. She was placed on workers' compensation and remained off duty until the doctor treating her said she was able to return to work. Petitioner remained away from her work station and called in to say she was too sick to come to work. On October 10, 1984, Jerry McDonald, Assistant Detention Superintendent, called Bennett and told her that for sick leave to be granted she had to bring in a certificate from a doctor. Bennett indicated she would do so. On October 11, 1984, McDona1d again called Bennett and repeated his message about her needing a doctor's certificate for sick leave to be granted. On October 16, 1984, McDonald again called Bennett about needing a doctor's certificate for sick leave to be granted and that if she remained on unauthorized absence for three consecutive days she would be terminated for having abandoned her position. At this time Bennett said she was too sick to come in. McDonald told her to mail in the doctor's certificate. No such certificate was ever received by the Respondent. October 16, 1984, was a workday for Petitioner and she was scheduled to be off duty on the 17th but to work October 19 through 22, inclusive. Petitioner failed to report for work on any of those days and never presented a doctor's certificate saying she was unable to work because of illness. By letter dated October 24, 1984, sent to Petitioner by certified mail, Petitioner was notified by Respondent that her resignation by reason of abandonment was being processed and of her right to petition for review within 20 days. Petitioner's request for review dated November 7, 1984, was timely filed.
Findings Of Fact Question numbered 13 of Respondent's application for licensure form roads as follows: "Have you ever been arrested[?] If yes, list any and all arrests and dispositions. This may or may not be grounds for denial. Attach separate sheets, if additional space is required." Petitioner did not answer this question. Petitioner was arrested in 1962 on a charge of "Peeping Tom - Window." In 1978, he was arrested for carrying a concealed firearm and for firing a firearm into an occupied dwelling. Adjudication was withheld on the 1978 charges, and Petitioner was Placed on three years probation. On April 21, 1980, Petitioner's probation was changed to non-reporting status, and his probationary period is scheduled to terminate on June 26, 1981. Petitioner's application for licensure was filed with the Respondent on June 12, 1980, and his application was denied on July 29, 1980.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered approving Petitioner's application for licensure as an unarmed security guard. RECOMMENDED this 7th day of January, 1981, in Tallahassee, Florida. LINDA M. RIGOT Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1981. COPIES FURNISHED: Mr. Sergio Torrente 219 South West Seventh Avenue, Apt. 2 Miami, Florida 33130 W. J. Gladwin, Jr., Esquire Assistant 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 in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
