The Issue The issue is whether the correctional officer certificate of Melvin J. Simmons should be revoked for lack of good moral character due to having sexual relations with an inmate in the Palm Beach County Jail where Mr. Simmons was employed?
Findings Of Fact Melvin J. Simmons was issued a certificate as a correctional officer by the Criminal Justice Standards and Training Commission on May 30, 1984, certificate 44-84-502-02. In February 1985, Mr. Simmons and Lidia Gonzalez were employed as correctional officers at the Palm Beach County Jail. Both had attended the Police Academy in the same class. In February 1985, Pearline Bartee was incarcerated at the jail. As a trustee, Ms. Bartee was able to move about the jail. Ms. Gonzalez worked in the watchtower at the jail. Simmons approached her to have her arrange a meeting between himself and Bartee in the enclosed stairwell between the first and second floors of the jail. Women inmates were housed on those two floors. Simmons told Gonzalez that he wanted the meeting to engage in sex with Bartee. Simmons asked Gonzalez to warn him through the intercom system in the watchtower and stairwell if a supervisor approached the stairwell while Simmons and Bartee were together there. Simmons had two meetings with Bartee in the stairwell and thanked Gonzalez for looking out for him. On both occasions Simmons had sex with Bartee in the stairwell. Sergeant Michael Tucker of the staff investigation unit of the Palm Beach County Sheriff's Department investigated a rumor that correctional officers had engaged in sex with female inmates. During the course of the investigation, Tucker received information that Simmons may have been involved in misconduct. On April 23, 1987, Sergeant Tucker and a polygraphist, Aaron Saylor, interviewed Simmons about the allegations of sexual misconduct. Simmons initially denied the allegations and grew increasingly nervous during the interview. Due to Simmons' demeanor, Tucker told Simmons that he doubted Simmons' truthfulness and was asked to submit to a polygraph examination. Respondent then admitted that he had engaged in intercourse with Bartee in the stairwell on three occasions in February 1985. Sexual contact between correctional officers and inmates is inconsistent with the employment practice of the Palm Beach County Sheriff's Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That certificate 44-84-502-02 issued to Melvin J. Simmons be REVOKED. DONE AND ORDERED this 21st day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2937 All proposed findings of fact have been adopted except Finding of Fact 9 relating to rumors that inmate Bartee may have become pregnant. In light of the evidence that Ms. Bartee, herself, told correctional officer Gonzalez that Bartee was not pregnant, there is no record basis for such a finding. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Melvin J. Simmons 1412 West 7th Street Riviera Beach Florida 33404 Marzell Mitchell, Jr., Esquire Harvey Building, Suite 413 224 Datura Street West Palm Beach Florida 33401 Rod Caswel1, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent's correction officer's license is subject to disciplinary action.
Findings Of Fact Mark T. Lewis, the Respondent, was certified as a correctional officer by the Criminal Justice Standards and Training Commission on October 31, 1990. He was issued Correctional Certificate Number 79926. At the time and to the present, Respondent lived with his long-time girlfriend, Melanie Young. On April 23, 1992, the Respondent threw a party, at a friend's house for Ms. Young. The friend's house was located at 220 North Caroline Street. Ms. Young became very inebriated at the party. At some point, she was so drunk she had fallen and bloodied her nose and face. During the night, a physical and verbal altercation occurred between the Respondent and Gerold Scurry. Also, at some point during the party, Respondent had stepped on a piece of glass which was lodged in his foot. Because of the altercation, Respondent left the party on foot but eventually obtained a ride from a friend. He left his car, a black Camero, at the party's location. Ms. Young did not want Respondent to leave. In her foggy, drunken state, she was upset that Respondent had left. After Respondent left the party, the party broke up with everyone leaving the apartment where the party had been held. Ms. Young and Mr. Scurry's sister left the party's location and went to her friend's relatives' home. The relatives and her friend, perhaps mistakenly believing Respondent had caused Ms. Young's bloody nose, agitated Ms. Young into calling the police. At approximately 5:00 a.m. on April 24, 1992, Melanie Young, still quite inebriated and not thinking clearly and still upset with Respondent, called the Daytona Beach Police Department. Ms. Young was so intoxicated she does not clearly remember what she told the police 911 operator when she called. She admits that she could have said anything to the operator in her condition. Officer Anthony Annatone received a dispatch to respond to 220 North Caroline Street in reference to a subject driving a black Camero who was possibly armed and enroute to that location in order to harm another. Ms. Young in her drunken state forgot Mr. Scurry was no longer at the party's location. In fact, no one was at the party's location. As Officer Annatone arrived he observed the apartment door standing open and a black Camero leaving the apartment's parking lot. Respondent had decided to retrieve his car from the parking lot. He was driving to the emergency room at the local hospital to have his foot taken care of. Officer Annatone, followed the Camero and called for back up. When the backup arrived, Officer Annatone activated his lights and pulled the Camero over. Respondent got out of the Camero and walked to the back of the car towards the police car. Officer Annatone asked Respondent if he was armed with a firearm or weapon. Respondent replied no but that the officer could check the car. Respondent was completely cooperative and polite towards the police officers. Daytona Beach Police Department Officer Steve Larson searched the Camero. He recovered from underneath the driver's seat a Titan II [sic] .380 caliber semi-automatic firearm, with a fully loaded magazine of 6 bullets. The gun was encased in a holster without a strap. Officer Annatone was not able to see a weapon from his vantage point outside and in back of the Camero. Respondent recognized the weapon as one purchased by Ms. Young. The gun was to be a surprise birthday present to Respondent. The present was chosen by Ms. Young because Respondent had recently obtained his correctional officer's license, was working at one of the local prisons and was authorized to carry a weapon while working. Unknown to Respondent, Ms. Young had hidden the weapon in the car. The car was used by both Respondent and Ms. Young. On or about September 21, 1992, the Respondent pled nolo contendere to carrying a concealed weapon. He was advised by his attorney that the plea would not have an impact on his correctional license. Adjudication was withheld. Respondent received the minimum fine and a short probation, which was completed successfully. Respondent is of good character and has never been in trouble either before or since this incident. Respondent was well thought of by the Daytona Beach Police and enrolled in and completed that Department's program to obtain a law enforcement officer's license even though he was on probation for this incident. Since Respondent did not know the gun was in the car and did not have any control or authority over the gun, he clearly did not knowingly or intentionally possess a concealed weapon. He therefore did not fail to maintain his good moral character. More importantly, however, even assuming he was aware of the gun being hidden in the car, it would be impossible for Respondent, who was and still is of good character, to lose that character upon the occurrence of the 1992 incident or plea. The facts simply do not support a finding that Respondent is of bad moral character or somehow failed to maintain his good character.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Administrative Complaint be dismissed. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Mark T. Lewis 1281 Brockett Road, Apartment 39F Clarkston, Georgia A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training 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 32302-1489
The Issue Whether Respondent's certification as a correctional officer may be revoked or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for failure to maintain the qualifications set out in Section 943.13(7), Florida Statutes, requiring such officer to have good moral character. At formal hearing, Petitioner presented the oral testimony of Benny Morse Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one exhibit admitted in evidence. Respondent presented the oral testimony of his wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter, Petitioner filed the transcript and submitted proposed findings of fact and conclusions of law within the extension of time granted by order. Petitioner's proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Respondent submitted no post-hearing proposals.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on November 4, 1974, and was issued certificate number CORR/C-0148. Respondent was first employed by the Florida Department of Corrections on November 4, 1974, as a correctional officer at the Hendry Correctional Institution. At all times material to the issues in the case, the Respondent was so employed and held the rank of lieutenant. During early August of 1984, Benny Platt was incarcerated at the Hendry Correctional Institution as an inmate. Platt was acquainted with Respondent Ping, who approached Platt during this period of time requesting a $10,000 loan to defray Respondent's wife's doctors' bills. Another inmate at the prison, Mark Krebs, was a friend of Platt. On August 10, 1984, Krebs was being held in solitary confinement as a punishment for Krebs' violation of prison rules by drinking and fighting. Platt was interested in helping Krebs to be released from solitary confinement so that Krebs would be eligible for work release. Platt approached Lieutenant Coburn, another correctional officer at Hendry, to obtain some relief for Krebs after Krebs had been in solitary confinement for 2 days. It was common practice for inmates to approach Respondent Ping or any other lieutenant for these types of requests, however, at the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was either on suspension or on some variety of leave due to Ping's two previous heart attacks. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and knew Respondent Ping by virtue of their common employment. Respondent had been Lt. Coburn's superior for some period of time in the past. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs, Lt. Coburn said he did not know if he could help but he would look into the situation. Lt. Coburn then asked Platt what Platt could do for him in return. Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn replied, "For what." Platt told him it was for trying to borrow money from inmates. (TR 25-26) On August 11, 1984, as part of a planned investigative technique to verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the Respondent at the Respondent's home. The Respondent accepted Platt's collect telephone call, and with Platt's permission, Lt. Coburn taped their conversation. Platt told the Respondent that he could not get the Respondent $10,000, but could get $5,000 to $6,000 at low interest with no problems. The Respondent replied that this amount would do. Platt then asked about Krebs' release from solitary confinement. The Respondent stated that he did not know what he could do, but as soon as he got back to Hendry, he would see what he could do. This is basically the reply made by Lt. Coburn when Platt had approached him earlier. On August 14, 1984, Respondent returned to work at Hendry. That day, Platt, under instructions from Lt. Coburn, approached Respondent at the prison and engaged him in conversation, which Lt. Coburn again taped with Platt's permission. Platt told Respondent Ping that he had arranged to get a $5,000 loan for Ping and told Ping to meet with Platt's niece at a place in La Belle, Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as his niece's name. On August 17, 1984, Florida Department of Corrections Inspector Diane Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his home. By arrangement, the two met on August 20, 1984, at the Crossroads Restaurant a/k/a White's Restaurant in La Belle, Florida. Prior to Respondent's arrival at the restaurant on August 20, 1984, Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed recording and receiving equipment in the restaurant's supply room in order to be able to overhear and record the transmissions of a microphone concealed on Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed themselves in the kitchen where they had a clear view of the table designated for the money transaction. At the appointed time and date, Inspector Enfinger, masquerading as Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table and he asked her to join him and his wife and a female dinner guest who were with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this suggestion as a ruse to see if a promissory note or other record of the transaction would be required so that the Pings would know if the transaction constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had plausible, if not probable, reasons for their state of mind and belief that some plot against them by Department of Corrections personnel was afoot, and Respondent had good probable cause not to trust inmate Benny Platt's several representations to him. Respondent Ping knew Platt's relatives were not from La Belle. Platt had dressed unusually on August 14, 1984 so as to cover the concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping both by telephone and in person had followed warnings received by Mr. and Mrs. Ping concerning attempts to oust Ping from employment due to his heart condition and resultant excessive absences. Although the content of these warnings is pure hearsay, the evidence of the warnings has not been accepted for the truth of the content asserted, i.e. that there was any such plot afoot. It is admissible and has been considered only to show the Respondent's and Respondent's wife's state of mind. Respondent Ping testified that he never intended to accept the loan offered by Platt but that if there were loan papers to sign, he planned to explain to "Sylvia Cox" what he had suspected about a plot before he declined the loan, since in his view, a loan agreement would make the transaction legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of trying to trap him. "Sylvia Cox" and the Respondent went outside to the parking area, but since the authorities' plan was for Cox/Enfinger to remain at a specific table inside the restaurant for her safety and for surveillance purposes, she requested that they return inside. Inspector Enfinger and the Respondent then sat at the designated table. Cox/Enfinger told Respondent that she was unable to get all the money, but had $1,000 with her and would get $4,000 to him later in the week. She produced no papers, but counted out ten one-hundred dollar bills onto the center of the table. Respondent picked up the stack of bills, holding it in both hands, then dropped the money, said he had "changed his mind" and did not need any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul- Wasi came out of the kitchen and arrested Respondent for the offense of unlawful compensation by a public official, Section 838.016, Florida Statutes. There are several inferences that can be drawn from Respondent's dropping of the money, but it is immaterial that Respondent maintains he dropped the bills as part of his intent to unmask a "set up" and could not see the kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt. Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and Respondent. According to Platt, Respondent's original request for a $10,000 loan occurred nearly two weeks before Krebs was confined. This renders it impossible for Respondent's original loan request to have been on a quid pro quo arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get them done." (TR 11). Platt was clearly attempting to ingratiate himself with Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging, initiated the idea of releasing Krebs when Platt first phoned Respondent, but Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement. No witness ever directly stated that the loan was conditioned on such an arrangement between Platt and Respondent. Platt vaguely termed it a "money situation," but Lt. Coburn confirmed that the money transaction between Platt and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to Cox/Enfinger what the money was for (TR 75). Further, it strains reason that since accommodations were made on a regular basis between corrections officers and inmates to get other inmates out of solitary confinement, that anyone involved in this "money situation" could have believed the real $1,000 (let alone the promised sum of $5,000) was being paid by Platt to Respondent in exchange for getting Krebs out of solitary confinement. Additionally, absent any proof that Krebs would have remained in solitary confinement for what seems an extraordinary length of time (August 9 - August 20) or that Respondent released Krebs, or that Lt. Coburn did not release Krebs, all of the "money situation" seems totally separate and apart from any services, illicit or otherwise, which Respondent may have been asked by Platt to perform. Further, Respondent's behavior, while rather extreme and based on suspicion, is adequately explained by his state of mind. His belief that he was being "set up" is not incredible under the foregoing facts as found. On August 21, 1984, Respondent was terminated from his employment at the Hendry Correctional Institution. On January 21, 1986, the Respondent entered a plea of nolo contendere in absentia to the charge of acceptance of unauthorized compensation pursuant to Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of the first degree and upon the assurance of the Court that adjudication would be withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an administrative penal proceeding for any recognized purpose. See Sections 90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984); Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis, 631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977). However, Respondent admitted the plea and waived any objections to admission of the plea. (TR-77).
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing this cause as against Respondent. DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143 Respondent filed no post-hearing proposals. The following constitutes specific rulings upon Petitioner's proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes: Covered in FOF 1. Covered in FOF 2. 3, 4, 7. Covered in FOF 3. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 4. Covered in FOF 4. Rejected as mere recitation of testimony, as subordinate and unnecessary, as largely not credible and as not supported by the greater weight of the credible evidence in the facts as found. Except as subordinate and unnecessary, covered in FOF 6. Rejected as unnecessary. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 5 and 7. Except as subordinate and unnecessary, covered in FOF 8. Rejected as unnecessary. 14, 15, 16. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 9. 17-18. Rejected as unnecessary. 19, 20, 21. Covered in FOF 10-11, and 14. 22. Rejected as unnecessary. 23, 24. Covered in FOF 12. 25. Rejected as unnecessary. 26, 27. Except as subordinate and unnecessary, covered in FOF 13. 28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14. Covered in FOF 16. Except as subordinate and unnecessary, covered in FOF 17. 33, 34, 35, 38 and 39. To the extent supported by the credible evidence as a whole, covered in FOF 17. 36, 37. Rejected as largely subordinate and unnecessary and otherwise as immaterial and as not supported by the greater weight of the credible evidence as found in FOF 17-18. Rejected as unnecessary. Covered in FOF 20. Except as subordinate and unnecessary, covered in FOF. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Gerald T. Ping 6690 Southwest 88th Trail Okeechobee, Florida 34574 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, John Hawks (Hawks), has been employed by the County as a correctional officer since February 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hawks. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hawks had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hawks and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hawks has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, John Hawks, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK 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 20th day of June, 1989.
Findings Of Fact Respondent was certified as a corrections officer in 1972 and was so certified at all times here relevant. Respondent was a season ticket holder to the Tampa Bay Buccaneers 1983 football games. He attended the game on September 25, 1983, with four friends. Before arriving at the game the group bought a fifth of whiskey. Respondent contends he had only one drink prior to the incident with the police officers but three police officers opined that Respondent was intoxicated. During the second half of the game, with the Bucs woefully behind and some spectators leaving the stadium, Respondent was yelling disparaging remarks about the Bucs and their performance on that day. Occasionally, Respondent was standing on his seat when he yelled the remarks. Respondent was more noisy than others in the section in which his seat was located and drew the attention of Jennifer Frye, a City of Tampa police officer serving as a uniformed off-duty policewoman paid the owners of the stadium to maintain crowd control. Officer Frye motioned for Respondent to come to the platform where she was standing, some four rows above Respondent's seat. Respondent did so, climbing between the people and seats behind him as he responded to Frye's summons. When Respondent reached Frye's position, she smelled alcohol on his breath and he appeared to her to be intoxicated. Respondent was somewhat annoyed in being called up by the policewoman and wanted to know why she had beckoned him from his seat. He was gesturing with his arms and asking what he had done wrong. Officer Lois Morraro, another off-duty member of the Tampa police force, was also working in uniform at the stadium. She observed Respondent respond to Frye's request and saw Respondent arguing. Morraro approached the two and positioned herself behind Respondent. Respondent told Frye he was a season ticket holder and was entitled to be upset when the Bucs were losing. Frye and Morraro decided to evict Respondent from the stadium and when Frye initially grabbed his hand Respondent pulled away. She then told him he was under arrest and grabbed his left arm and hand with a come-along grip. Morraro grabbed Respondent's right arm, twisted it behind his back, and moved the hand up toward the shoulders. They proceeded to propel the struggling Respondent down the steps to a holding area. When they reached the holding area they were joined by Sergeant Peter Ambraz, the off- duty Tampa police officer in charge of the stadium detail. Ambraz took Respondent's right arm while Morraro handcuffed Respondent. During this time Respondent was trying to keep from being handcuffed and in the process his elbow accidentally hit Morraro in the throat while she was standing behind him putting handcuffs on him. After Respondent had been handcuffed and taken to the police station, he revealed that he was a certified corrections officer. Respondent was subsequently tried for disorderly intoxication and fired from his job with the Hillsborough County Sheriff's Department.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact On May 16, 1983, Walter Taylor (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner), having been issued Correctional Certificate Number 66856. On December 23, 19851, Respondent was certified by Petitioner, having been issued Law Enforcement Certificate Number 66855. At all times material hereto, Respondent was employed by the Riviera Beach Police Department (Riviera Beach PD) as a law enforcement officer. In April 1994, Respondent and his wife were divorced. They had been married 14 years and had minor children. Prior to the divorce, Respondent had several confrontations with his wife regarding her relationship with another man, a Mr. Chilton, whom she had met in or around 1988. During one confrontation in April 1993, Respondent slapped his then wife. At times, Mr. Chilton was present when the confrontations took place. At no time prior to the divorce did Respondent harm or threaten to harm Mr. Chilton. Subsequent to the divorce, Respondent’s ex-wife and Mr. Chilton continued their relationship. In August 1994, Respondent wanted to attend his family’s reunion in New York but had insufficient funds to take his children with him. Respondent’s ex-wife agreed to attend the reunion with them. With her financial support, everyone could attend the reunion. Respondent and his ex-wife agreed to a pre- arranged time for them to meet on August 11, 1994, and drive to the reunion together. On August 11, 1994, prior to the pre-arranged time, Respondent and his children were packed and ready to leave. Respondent attempted to contact his ex-wife, so they could depart early. He called several places but to no avail. Having failed to locate his ex-wife, Respondent concluded that she was at Mr. Chilton’s apartment. Respondent called Mr. Chilton’s apartment several times only to get an answering machine. He drove to Mr. Chilton’s apartment. By this time, it was approximately 10:00 or 10:30 p.m. When Respondent arrived at Mr. Chilton’s apartment complex, he observed both Mr. Chilton’s and his ex-wife’s vehicles in the parking area. Respondent knocked on Mr. Chilton’s apartment door but received no response. Having knocked from two to five minutes, Respondent left but stopped nearby at a telephone. He repeatedly called Mr. Chilton’s apartment and again the answering machine answered. Respondent was convinced that his ex-wife was in Mr. Chilton’s apartment and that they were refusing to answer the telephone or the door. Respondent was upset and frustrated. Respondent returned to Mr. Chilton’s apartment and began knocking again. The more he knocked, the more frustrated he became. His knocks became harder and louder until he was pounding the door. No one answered the door. Respondent’s ex-wife and Mr. Chilton were afraid to open the door. At all times, Mr. Chilton and the Respondent’s ex-wife were inside the apartment. The door was locked and the deadbolt was engaged. Becoming more and more frustrated, Respondent hit the apartment door two or three times with both hands, arms raised, palms forward and with the weight of his body behind him. The force applied by Respondent knocked down the door. Respondent entered Mr. Chilton’s apartment beyond the door frame. He told his ex-wife to come outside with him and talk. She immediately complied. While exiting Mr. Chilton’s apartment, Respondent informed Mr. Chilton to bill him for the door. The door to Mr. Chilton’s apartment was damaged beyond repair and the area surrounding the door was severely damaged. The dead bolt area on the door was bulged. The area on the door jam in which the dead bolt slid had popped and come loose and was indented. The door handle was very loose. The trim on the doorway was split. On many occasions Respondent has been involved in law enforcement raids in which he, personally, has had to break down doors with his body. The method used by Respondent to break down the doors during the raids was not the same method used by him on August 11, 1994. Even though Respondent’s action forced open the door to Mr. Chilton’s apartment, he reacted out of frustration, not with the intent to force the door open. However, Respondent acted in reckless disregard for the consequences of his actions. He should not have returned to Mr. Chilton’s apartment but waited for his ex-wife until the prearranged time. Respondent’s actions could have escalated the situation into a more serious incident. He exhibited a reckless disregard for the safety and property of others. The incident was reported to the Martin County Sheriff’s Department. The Deputies on the scene took pictures and completed a report. Mr. Chilton did not want to file criminal charges against Respondent but only wanted his door repaired. The Deputies assisted Mr. Chilton in somewhat securing the door, so that it would at least close. Approximately 3:00 a.m. on August 12, 1994, Respondent telephoned Mr. Chilton. Respondent apologized for the damage to the door and agreed to pay for the damage. Subsequently, Respondent telephoned the apartment complex’s manager and agreed to pay for the damage to the door. The cost of the door was $352.99. A payment plan was arranged in which Respondent would pay for the damage in installments. Due to financial constraints, Respondent was unable to comply with the payment plan as agreed upon. The final payment was made on or about February 2, 1995. Respondent had no reason associated with his law enforcement duties to enter Mr. Chilton’s apartment. Respondent was off-duty and out-of uniform. Respondent entered Mr. Chilton’s apartment without permission or invitation. Respondent is responsible for the damage to the door of Mr. Chilton’s apartment. Prior to the incident on August 11, 1994, in or around June 1994, Respondent received training in Anger Management. On August 3, 1994, Respondent was promoted to Sergeant, on a probationary status, by the Riviera Beach PD. As a result of the incident on August 11, 1994, the Riviera Beach PD conducted a personnel investigation. On January 24, 1995, it issued a notice of intent to take disciplinary action against Respondent -– a demotion from a Sergeant to a Patrol Officer, which included a five percent cut in salary. The disciplinary action was taken by the Riviera Beach PD. On November 2, 1994, Petitioner’s Probable Cause Panel issued Respondent a Letter of Guidance for the act of committing battery (slapping) upon his then wife in April 1993. At the time of the issuance of the Letter of Guidance, Respondent had successfully completed the Probable Cause Intervention Program. The Probable Cause Panel was not aware of the pending disciplinary action against Respondent by the Riviera Beach PD involving the incident of August 11, 1994. Neither Respondent nor the Riviera Beach PD notified the Probable Cause Panel of the pending disciplinary action.
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 Reprimanding Respondent; and Suspending Respondent’s certification for thirty (30) days. DONE AND ENTERED this 17th day of March, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1997.
