Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. 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 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner's request for a waiver from a rule which would allow her to reactivate her law enforcement certification without further training or examination should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Zoe Gail McLendon, whose correctional officer and law enforcement certifications became inactive in October 1999, seeks a waiver from the requirements of Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code. That rule requires that in order for her to activate her certifications, Petitioner must successfully complete refresher training courses and pass certification examinations in each discipline. If the waiver is approved, Petitioner intends to activate her law enforcement certification and seek employment with the Citrus County Sheriff's Office as an auxilliary deputy sheriff. Without reaching the merits of her request, Respondent, Florida Department of Law Enforcement (FDLE), Criminal Justice Standards and Training Commission (Commission), rendered a preliminary decision on May 3, 2000, denying Petitioner's request on the ground that she was actually seeking a waiver of a statute, which is expressly forbidden by Section 120.542(1), Florida Statutes (1999). Petitioner was first certified as a law enforcement officer on March 24, 1987, having been issued Law Enforcement Certification No. 66303. She is also certified as a correctional officer, having been issued Correctional Officer Certification No. 66304 on May 8, 1984. From December 16, 1983, until October 1, 1995, Petitioner was employed by the Citrus County Sheriff's Office as a correctional officer at the Citrus County Detention Facility. When the position was privatized on October 1, 1995, she continued to work in the same position for Correctional Corporations of America until October 23, 1995, when she voluntarily resigned. She has not worked with a law enforcement agency since that time. Under Section 943.1395(3), Florida Statutes (1999), if a certified officer is separated from employment and is not re- employed by a law enforcement agency within four years after the date of separation, the officer must meet the minimum qualifications for certification, including any retraining required by Commission rule. The purpose of such retraining is to bring the officer's skills up-to-date after having been inactive over the prior four-year period. Rule 11B-27.0026(1)(a) and (b), Florida Administrative Code, implements the foregoing statute and provides that a person seeking to reactivate a law enforcement certification must take a 92-hour certification examination refresher course and a high- liability training course (including defensive tactics, firearms, and driving), and successfully complete the state certification examination. Therefore, Petitioner had to be re-employed by a law enforcement agency no later than October 23, 1999, or be subject to these additional training and examination requirements. Petitioner acknowledges that she was aware of this requirement. In addition to the foregoing requirements, Petitioner was also required to complete forty hours of mandatory retraining as a correctional officer by June 30, 1997, and a similar number of hours of mandatory retraining as a law enforcement officer by June 30, 1999. In May 1999, Petitioner spoke by telephone with Bonnie Miller (Miller), human resource director for the Citrus County Sheriff's Office, concerning possible employment as an auxilliary deputy. Petitioner explained that she needed to complete her mandatory retraining by June 30, 2000, and to be re-employed before October 23, 1999, in order to keep her law enforcement certification from expiring. Miller told Petitioner that any application she filed would be considered, but that she should speak with Sergeant Vern Blevins (Blevins), the training officer, who was more familiar with the mandatory retraining requirements. Petitioner then telephoned Blevins to inquire whether her recent graduation from St. Leo College with a degree in Criminal Justice would satisfy the mandatory retraining requirement. Blevins told Petitioner that he did not know if the degree would satisfy the domestic violence, human diversity, and juvenile sexual offender portions of the training requirement. He also told her that the Sheriff's Office had no in-house training courses available before June 30, 1999, and he referred her to several nearby schools that offered such training, including the Withlacoochee Vocational Technical Center (Vo-Tech Center) and a community college. On a later undisclosed date, Petitioner spoke with an instructor named Eva Brown at the Vo-Tech Center and says Brown advised her to make an inquiry about retraining with FDLE's office in Tallahassee. On October 11, 1999, or less than two weeks before her certificates became inactive, Petitioner telephoned Brenda Harp in the FDLE's records section and left a message (and two contact telephone numbers) indicating that she needed a question answered. Another record sections employee, Ms. Murozzi, attempted to return the call the same day but was unable to reach Petitioner at either of the two telephone numbers given. Efforts to reach Petitioner the following day were also unsuccessful. On October 22, 1999, or the day before her law enforcement certification became inactive, Petitioner again telephoned the Commission and spoke for about an hour with Murozzi concerning her situation. Petitioner was told essentially the same thing that she already knew - that her certification would expire the following day since she had not completed the mandatory retraining or become employed by a law enforcement agency. A suggestion was made by Murozzi that perhaps Petitioner might seek a waiver from the Commission's rule. This proceeding followed. While it is true that a strict application of the rule will obviously create a substantial hardship on Petitioner, the application of the rule will not affect Petitioner in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule. Indeed, the evidence shows that "several thousand" individuals in the same situation as Petitioner have been required to undergo the very same training and examination requirements that Petitioner seeks to have waived. This indicates rather clearly that Petitioner's circumstances are not unusual, and that thousands of officers have found themselves in the same situation. At the same time, Petitioner cannot satisfy the purpose of the underlying statute [Section 943.1395(3), Florida Statutes (1999)] by any other means. In other words, without the retraining and examination required by the rule, Petitioner's law enforcement skills cannot be brought up-to-date. Although not germane to the waiver issue, at hearing Petitioner contended that the Commission had the responsibility to timely notify her before October 1999 of all requirements that she had to satisfy in order to keep her certificates active. State law provides, however, that the local employing agency (rather than the Commission or FDLE) has this duty. If an officer is unemployed, like Petitioner was, then the responsibility rests upon the individual to ascertain that information. This is because there are "a couple of hundred thousand or more inactive officers" at any given time, and the Commission neither has the statutory duty nor the computer capability to keep track of certification requirements for that number of inactive officers and to relay that information to each inactive officer. At hearing, Petitioner also took the position that because the Florida Statutes provide for a waiver of rules under certain circumstances, she is automatically entitled to one. This contention has been found to be without merit.
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 denying Petitioner's request for a waiver from the requirements of Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 November, 2000. COPIES FURNISHED: A. Leon Lowrey, II, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Zoe Gail McLendon Post Office Box 842 Dunnellon, Florida 34430 Shehla A. Milliron, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact The Respondent was certified by the Commission as a correctional officer on July 1, 1981, and was issued Certificate Number 33-81-500-00. At all times material to these proceedings, the Respondent was employed by the Collier County Sheriff's Office and was assigned to work with inmates in the county jail. In the course of his duties, Respondent Parks became acquainted with a young female inmate, Melissa Sue Watson. After her release from jail, the Respondent continued to see the woman socially. As part of their relationship, the Respondent would occasionally give the woman money or anything else she requested that he was able to provide for her. While the Respondent and the young woman eventually became sexually intimate, the money was not given to her in direct exchange for sexual services. Instead, the money and other requested items were bestowed as gifts to demonstrate his affection and to assure that she would continue to allow a married man of his years to court her. Due to the fact that Respondent's wife was in charge of the family finances, the sums of money given to the young woman were sparse. These gifts amounted to little more that the Respondent's spare change and lunch money. After the relationship progressed to the stage where the parties had become sexually intimate, the young woman asked the Respondent to get her some marijuana. She was provided with the pipe and marijuana the Respondent had confiscated from his teenaged son. The Respondent smoked the marijuana with the young woman. During her relationship with the Respondent, the young woman had an ongoing relationship of a different kind with another member of the Collier County's Sheriff Department. Melissa Sue Watson was a confidential informer for Linda Leis, a narcotics investigator with the Vice-Intelligence-Narcotics Unit (VIN Unit). She assisted Ms. Leis in the arrest of several narcotics violators prior to her report that Respondent Parks had given her money and marijuana in exchange for sex. Ms. Watson gave the investigator the pipe used to smoke the marijuana. A field test confirmed that it had contained marijuana. The young woman was told to arrange an assignation with the Respondent so his actions could be documented and an arrest made if the allegations were well-founded. Pursuant to instructions from Ms. Leis, the woman placed a telephone call to the Respondent which was recorded by the sheriff's department. The Respondent was asked to join Ms. Watson at White's Motel after work. Ms. Watson requested that the Respondent bring money and marijuana because she needed funds and wanted "to get high." In response to her invitation, Respondent told Ms. Watson that he would meet her and that he had ten dollars she could have. However, he was unable to provide marijuana because he did not know where to get it. When she inquired as to where he got the marijuana in the pipe, he teased her by withholding the information. Eventually, after she prodded him for an answer, he agreed with her suggestion that he had grown the marijuana in order to stop the inquiry. He told her there was no more and closed the topic. In fact, the Respondent had not grown the marijuana. As mentioned previously, he confiscated it from his son. When the Respondent arrived at the hotel, members of the VIN Unit had already installed listening and recording devices in the room. They waited in the adjoining room to take pictures and make an arrest once it was determined that Respondent Parks had given Melissa Sue Watson money for sex. During the motel room conversations between Respondent and Ms. Watson, the Respondent expressed concern about Ms. Watson's failure to appear in court that morning on a new pending criminal charge. She feigned surprise about having been on the court docket and stressed her need for money. She teased the Respondent during their foreplay that she had something for him if he had the money he said he was bringing to her. Because the Respondent was expected home shortly, he handed Ms. Watson the money he brought to give to her when she asked to see it. Based upon their prior relationship and the contents of the recorded conversations, the giving of the money and the sexual activity between the parties were concurrent actions that were not connected to each other. They occurred at the same time because the parties were involved in a clandestine, adulterous affair that allowed them to see each other on an infrequent basis. Once the Respondent stripped down to his underwear in order to proceed further with the sex play, members of the VIN Unit entered the room and placed the Respondent under arrest. After he waived his right to receive the Miranda warning, the Respondent admitted to having had sex with Melissa Sue Watson in the past and having smoked marijuana with her that he had provided at her request.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found guilty of unlawfully, delivering less than twenty grams of cannabis to another person and of constructive possession as set forth in Paragraph 2(a) and 2(b) of the Administrative Complaint. That the Respondent be found not guilty of having engaged in prostitution with another person, as set forth in Paragraph 2(c) of the Administrative Complaint. That Respondent's certificate as a correctional officer be revoked. DONE and ENTERED this 12th day of June, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6766 Petitioner's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #7. 4. Accepted. See HO #7. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #9. 8. Accepted. 9. Accepted. See HO #10. 10. Accepted. See HO #10. 11. Accepted. See HO #10. 12. Accepted. See HO #11. 13. Accepted. 14. Accepted. Rejected. Irrelevant. Accepted. See HO #12-#13. Rejected. Irrelevant. Accepted. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #16. Rejected. Irrelevant. Accepted. Accepted. See HO #16. Rejected. Contrary to fact. See HO #14. Copies furnished to: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Al Beatty, Qualified Representative c/o Clyde W. Parks 5226 Jennings Street Naples, Florida 33962 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Anderson is a certified correctional officer, certified by Petitioner. Her certificate number is 190482. At the time of the incident at issue, Anderson was working for the Wackenhut Corrections Corporation as a correctional officer at South Bay Correctional Facility. On May 27, 2003, Patricia Johns (Johns) was in the Wal-Mart parking lot in Clewiston, Florida. Johns was taking groceries she had purchased from a shopping cart and placing them in her vehicle. She placed her sweater and her purse in a shopping cart while she was loading the groceries. Johns retrieved her sweater from the cart, but left her purse in the cart. She pushed the cart with the purse in it between her vehicle and another vehicle, got into her vehicle, and left the parking lot. A few seconds later Anderson pulled into Johns' parking space. Anderson's vehicle bumped the shopping cart, pushing it forward a couple of feet. She got out of her vehicle, went over to the cart, and removed the purse. Anderson, while wearing her correctional officer uniform, placed the purse in the backseat of her vehicle, took her son out of the vehicle, and went into Wal-Mart. She did not take the purse into Wal-Mart and attempt to locate the owner. The purse was a Tommy Hilfiger brand valued at $50. Inside the purse was a wallet with $18 in cash, a credit card, and blank checks. A cellular telephone valued at $350 was also in the purse. Anderson picked up some prescriptions at Wal-Mart, returned to her vehicle, and eventually returned home. She knew that the purse did not belong to her, but claimed that she was planning to turn the purse in at the police department the next day. Her claim that she was going to turn the purse into the police is not credible based on later actions. Sometime after she had returned home, she remembered she had put the purse in the back of her vehicle and asked her fiancé to get the purse. When he went to retrieve the purse, only the wallet remained minus the cash. During the time that Anderson left Wal-Mart and the time that her fiancé discovered that the purse, cash, and cellular telephone were missing, both Anderson and her fiancé had driven the vehicle while carrying other passengers. Anderson did not remove the purse, cash, and cellular telephone from the vehicle. She believes that one of the other passengers who had been riding in her vehicle on May 27, 2003, took the purse, cash, and cellular telephone. The next day, Anderson placed the wallet in a zip-lock plastic bag and dropped it in a drop box at the post office. She did not notify the owner of the purse that she had taken the purse from the Wal-Mart parking lot, and did not notify the police until later that she had taken the purse. Johns reported to the police that her purse had been stolen. An investigation ensued, and it was learned based on a video tape of the Wal-Mart parking lot on May 27, 2003, that Anderson had taken the purse. A police officer attempted to contact Anderson by telephone concerning the incident. On June 9, 2003, Anderson gave a taped interview to police officers, in which she admitted taking the purse out of the shopping cart and placing it in the backseat of her car. She was arrested for grand theft and released on the same day after posting a bond. An information for grand theft, a third degree felony, was entered against Anderson on August 13, 2003. She agreed to make restitution in the amount of $419, and a Notice of Nolle Prosequi was entered on December 5, 2003. As a result of the incident at issue, Anderson was dismissed from her position as a correctional officer at South Bay Correctional Facility. She is sincerely sorry for her actions and has made restitution for the property taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lenora R. Anderson is not guilty of a violation of Subsection 943.1395(6), Florida Statutes (2003); finding that she failed to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2003), and defined by Florida Administrative Code Rule 11B-27.0011; and imposing the following penalties as set forth in Subsection 943.1395(7), Florida Statutes (2003): issuance of a written reprimand and placement of Respondent on probation for two years under conditions as specified by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
The Issue Whether Respondent violated Sections 943.13(7) and 943.1395(6), (7), Florida Statutes, and Rule 11B-27.011(4)(a), (c), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Reinaldo C. Pascual (Pascual), has been certified by the Petitioner, Criminal Justice Standards and Training Commission (CJSTC), as a corrections officer since June 17, 1988. His certificate number is 65593. On May 24 and 25, 1993, Pascual was employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (Corrections) as a corporal. He was assigned to the ninth floor of the pretrial detention facility. The ninth floor is the psychiatric ward. Pascual was working the 11 p.m. to 7 a.m. shift. On May 21, 1994, Eladio Vega appeared in court on a traffic matter after which the judge instructed him not to drive his vehicle because Mr. Vega had been drinking all night. Mr. Vega went to his vehicle after the court appearance. As a result of his actions, he was held in contempt of court and sentenced for a number of days in jail. Mr. Vega was incarcerated in the Dade County Jail and was placed on the fourth floor of the pretrial detention facility with the general inmate population. Late in the evening of May 24 or early morning hours of May 25, 1993, Mr. Vega began to exhibit some bizarre behavior, touching other inmates and changing the channels on the television set in the dayroom. Officer Gary Banks received complaints from the other inmates about Mr. Vega's behavior. Officer Banks went to Mr. Vega's cell and asked him to step outside the cell. Acting nervously, Mr. Vega complied but told Officer Banks that he had to get back in the cell because his son was in the cell. Mr. Vega's son was not in the cell. Thinking that Mr. Vega's behavior was strange, Officer Banks contacted his superior and requested authorization to take Mr. Vega to the clinic so that a nurse could take a look at him. Around 1:45 a.m., Officer Banks escorted Mr. Vega to the clinic. While Vega was in the clinic, he was pacing, sweating, and acting nervously. The nurse on duty determined that Mr. Vega should be transferred to the ninth floor until he could be evaluated by the day nurses. Mr. Vega was transferred to the ninth floor and placed in a cell with fifteen to twenty other psychiatric patients. The inmates complained about Mr. Vega's behavior, and Mr. Vega was transferred to cell 9-C-2, which is a single-man cell. The cell is one of five or six pods which are locked with no access to the dayroom. Each pod is approximately eight feet by six feet and contains a metal bunk, a toilet, and a sink. The only opening to the pod is a chow hole, which is a slot that is approximately two feet by one foot with a metal cover. The chow hole is used to serve food to the inmates. The door to the pod is made of steel with chicken wire enclosed by glass. The wall to the pod is transparent and made of glass. There are slots in the glass wall so that the inmates and officers can communicate. Mr. Vega began to bang on the cell walls, yelling and screaming. Officer Del Castillo was on duty on the ninth floor and went to see what was wrong with Mr. Vega. Officer Del Castillo tried to verbally calm Mr. Vega, but he did not succeed. Mr. Vega was trying to kick out the window in the cell, using a donkey kick by having his back to the window and kicking the window with his feet. Unable to quiet Mr. Vega, Officer Del Castillo went to his supervisor, Pascual, and told him about Mr. Vega's behavior and of his fear that Mr. Vega would harm himself. Pascual got the leg shackles and went to Mr. Vega's cell with Officer Del Castillo. Both officers unsuccessfully tried to calm Mr. Vega. Pascual decided to go into the cell and restrain Mr. Vega. As Officer Del Castillo opened the cell door, Pascual was standing directly in front of the door. When the door opened, Mr. Vega ran out, hitting Pascual in the abdominal area and knocking him toward the floor. Mr. Vega testified that he ran out of the cell because he thought the officers were trying to poison the air in his cell. Pascual managed to hit Mr. Vega in the face. Mr. Vega then turned and started to throw punches at Officer Del Castillo. None of Mr. Vega's punches found their mark. Officer Del Castillo was able to land a couple of punches on Mr. Vega's head and face. Having recovered from Mr. Vega's initial hit, Pascual hit Mr. Vega in the face. Mr. Vega fell backward and landed on the floor with his back to the cell wall. Mr. Vega hit the left side of his head on the chow hole in the cell. Pascual told Mr. Vega to turn onto his stomach and to put his hands behind his back. Mr. Vega did not comply but started to get up on his feet. Pascual, thinking that Mr. Vega was going to attack him again, grabbed Mr. Vega around the throat and tried to implement a lateral vascular neck restraint (LVNR). Mr. Vega was thrashing from side to side and leaned forward carrying Pascual upward on his back, piggy back style, until they lost their balance and fell forward hitting the metal bunk in the cell. Pascual was able to apply the LVNR, and Vega passed out for a few seconds. By this time Mr. Vega was bleeding profusely on the left side of his head. Pascual and Officer Del Castillo, placed handcuffs on Mr. Vega's wrists and shackles on his ankles. Mr. Vega was placed stomach down on a stretcher, which was between six to twelve inches from the floor. Pascual and Officer Del Castillo placed Mr. Vega in the elevator to take him to the clinic. While they were in the elevator, Mr. Vegal rolled off the stretcher at least two times. The stretchers were old and were not equipped with straps to hold the inmate down. When they arrived at the clinic, Nurses Kim Smith and Dorothy Ferguson were on duty along with Officer Lionel Cloney. Nurse Ferguson completed a medical addendum at 4:45 a.m. concerning Mr. Vega. She completed the section entitled "Specific description of any and all injuries" as follows: Bizarre behavior. Irrational. Out of control. Violent Behavior! Bleeding from R eye/Laceration in ear. Bright red-Large amt bleeding. Harmful to self & others. Nurse Ferguson completed the section of the medical report entitled "Treatment Rendered and/or Medical Recommendations" as follows: 4 point restraints. Harmful to self & others. Refer Ward-D Emergency. Ward D is a section of Jackson Memorial Hospital for inmates that need to go to the hospital for medical treatment. There are three ways to transport an inmate from the pretrial detention facility to Ward D: first, inmates with the most extreme emergencies are transported by Fire Rescue; second, inmates with less extreme emergencies are transported by ambulance; third, inmates needing routine medical care are transported by Corrections. The medical staff at the pretrial detention facility decides how the inmates will be transported to the hospital. In the case of Mr. Vega, the nurses determined that Mr. Vega would be transported to Ward D by Corrections. Officers Del Castillo and Pascual took Mr. Vega to the lobby of the detention facility to wait to be transported to Ward D. Officer Del Castillo went back to the ninth floor to write his report, and Pascual stayed with Mr. Vega. They were in the lobby approximately fifteen minutes before they left for the hospital. While Mr. Vega and Pascual were waiting in the lobby, Sergeant Alfonso Iglesisas observed Mr. Vega yelling and screaming. He also saw Mr. Vega roll off the stretcher two or three times. Pascual and Officer Marshall transported Vega to Ward D in a Corrections station wagon. Mr. Vega was placed in the rear of the vehicle, and Pascual sat in the front seat with Officer Marshall. The trip to Ward D took less than five minutes. Upon their arrival at Ward D, Pascual advised Corrections personnel there that he had a violent inmate in a four-point restraint and that he needed assistance to bring the inmate inside. Two or three officers assigned to work Ward D came out with a wheelchair and took Mr. Vega inside. Pascual accompanied Mr. Vega inside, where Mr. Vega was placed in a holding cell. Mr. Vega was still behaving violently and screaming. Pascual returned to the pretrial detention center. Mr. Vega had the following injuries when he was admitted to the intensive care unit hospital on May 26, 1993 at 4:04 a.m.: fractures of the orbit, a large bruise on his flank, fracture of the nasal bone, fracture of the second cervical vertebra, a cut over the left ear, a punctured eardrum, extensive bruising on his arms, deep abrasions on the right side of his abdomen and left side of his chest and abdomen, and a rotator cuff tear. Additionally he was suffering from alcohol withdrawal delirium and rhabdomyolysis, which is damage to the muscle. Rhabdomyolysis can be caused by trauma or alcohol withdrawal. In Mr. Vega's case, it could not be determined what was the cause of his rhabdomyolysis. The injuries noted are consistent with more than three blows to the head. The rotator cuff tear likely occurred when the officers were trying to apply handcuffs to Mr. Vega. All of Mr. Vega's injuries were sustained at approximately the same time and could have occurred within a time period of five to six hours. Mr. Vega's injuries were caused by blunt trauma sustained as a result of being punched or kicked. Mr. Vega spent 13 days in intensive care at Jackson Memorial Hospital. As a result of his injuries, he required oral-facial surgery. The rotator cuff tear will produce some pain in the shoulder after it has healed and may result in arthritis in the future. At the time of the incident at issue, a Use of Force/Levels of Resistance Matrix established by the CJSTC was in effect. The matrix serves "as a guideline for an officer to select effective reasonable and legal force options in a verbal or physical encounter." (Petitioner's Exhibit 6) The matrix has six resistance levels and six response levels. Resistance level four is active physical resistance and is defined as follows: A subject makes physically evasive movements to defeat an officer's attempt at control. This may be in the form of bracing or tensing, attempts to push/pull away or not allowing the officer to get close to him/her. Resistance level five is aggressive physical resistance and means the following: A subject makes overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. The highest response level on the matrix for active physical resistance is the use of intermediate weapons, such as a baton, side handle baton, aerosol tear gas, and flashlight. These weapons are used primarily to control a person. The highest response level on the matrix for aggressive physical resistance is incapacitation, which is defined as: Techniques that are intended to stun or render a subject temporarily unconscious, delivered with or without an impact weapon, such as a strike to a major nerve area. If a specific level of response is not available to an officer, the officer can go up one level to respond to the resistance. Neither Pascual nor Officer Del Castillo had intermediate weapons available at the time that Mr. Vega ran out of his cell and starting fighting the officers. The Metro-Dade Corrections and Rehabilitation does not use intermediate weapons. The LVNR is not included in or classified in the response levels of the Use of Force/Levels of Resistance Matrix. If it had been classified, it would come under incapacitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 3rd day of December, 1997. COPIES FURNISHED: Karen D. Simmons Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Teri Gutman Valdes Assistant General Counsel Dade County Police Benevolent Association 10680 Northwest 25th Street Miami, Florida 33172-2108 A. Leon Lowry, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue This is an examination challenge proceeding in which the Petitioner contends that he should be given additional credit for his answers to two challenged questions from Section 5 of the April 25, 1995, Law Enforcement Officer Basic Recruit Training Examination.
Findings Of Fact Background matters The Respondent agencies are agencies of the State of Florida and are charged by statute with responsibility for the testing and certification of law enforcement officers in Florida. Petitioner seeks to become a Florida certified law enforcement officer. To that end, on April 25, 1995, he sat for Section 5 of the certification examination. In order to receive a passing grade on Section 5 of the examination, the Petitioner must answer 80 percent of the questions correctly. The Petitioner was originally given a grade of 75 percent on the April 25, 1995, examination. The examination was then manually graded and the Petitioner was awarded a raw score of 46 points which equates to a percentage score of 77 percent correct. At the commencement of the hearing the Respondents stipulated that the Petitioner should be given credit for his answer to question 38. That stipulation had the effect of increasing the Petitioner's raw score to 47 and increasing his percentage of correct answers to 78.3 percent. The Petitioner needs a raw score of at least 48 in order to have answered 80 percent of the questions correctly. Multiple choice questions on a certification examination should have only one correct answer choice. If more than one of the answer choices is arguably valid it is the policy of the Criminal Justice Standards and Training Commission to give candidates the benefit of the doubt and give them credit for an arguably correct answer other than the "keyed" correct answer. Question Number 30 Question number 30 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-704(A1), the topic of which is "Use of Force Matrix/Levels of Resistance Matrix." Question number 30 is a multiple choice question, the answer to which involves identification of the appropriate initial officer response level to a situation described in the question. 5/ The situation described in question number 30 involves conduct by the subjects described in the question that could be interpreted as at least level 5 resistance on the Level of Resistance Matrix. When faced with that level of resistance, the Use of Force Matrix authorizes a broad range of officer responses from as little as "arrival" or "officer presence" to as much as "incapacitation," with nine or ten authorized intermediate responselevels in between. Judging from the "keyed" correct answer, question number 30 was apparently intended to test the candidates' knowledge of the first response level itemized on the Use of Force/Levels of Resistance Matrix. However, the question is worded in such a way that it appears to be asking what the candidate would do first if he or she responded to the situation described in the question. In view of the definitions in Law Enforcement Objective CJD-704(A1) of the terms "Presence" and "Dialogue" under the caption "OFFICER RESPONSE LEVELS," the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 6/ Question number 30 is also ambiguous because of all of the potential variables that might be present in a situation such as that described in the question, which variables could change the nature of the most appropriate response. By reason of this ambiguity in the subject question, the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. Question Number 54 Question number 54 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-723(F1), the topic of which is "Vehicle Pullovers." Question number 54 is a multiple choice question, the answer to which involves identification of the first thing an officer should do in the situation described in the question. 7/ Question number 54 is ambiguous and misleading when the question is considered in light of the language of the relevant portions of Law Enforcement Objective CJD-723(F1), which read as follows: OBJECTIVES: The student will: * * * Describe the proper positioning of the patrol vehicle, to include: approximately 15 feet behind the vehicle approximately 3 feet to the left turn the radio up leave flashing lights on during the entire stop. Recall that an officer should constantly observe the vehicle and occupants. Identify the procedures to be followed while approaching the vehicle on foot, to include: be aware of traffic conditions observe the driver and passengers by looking in the side or rear windows check the trunk to be sure it is closed. approach slowly and carefully from the left front door of the patrol vehicle to just behind the left front door of the violator's vehicle when only the front seat is occupied minimize exposure by standing just to the rear of the violator's vehicle, if rear seat occupied visually check persons and passenger's compart- ment for weapons carry flashlight, if needed, leaving strong hand free for possible weapon use Recall that it is important to have the driver turn off the engine [immediately] after stopping. Identify steps to follow during the initial violator contact, to include: greet the offender with courtesy obtain the driver's license and registration [immediately] to gain control briefly state reasons for stop do not accept a purse or wallet with a license inside; ask the offender to remove it do not argue with the offender; thoroughly explain the reason for the stop. [Emphasis added.] The language from CJD-723(F1) quoted above does not purport to prioritize the actions it describes, nor does it clearly state which of the many actions described in that language should be taken first. Several of the actions described above could be reasonably identified as the first action a police officer should take under the circumstances described in question number The answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 8/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner is entitled to credit for his answers to questions 30 and 54 and adjusting his examination score accordingly. DONE AND ENTERED this 24th day of January, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 24th day of January 1996.
Findings Of Fact At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that: Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1) UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.
The Issue Whether the Petitioner submitted a false test result to the Miami-Dade College School of Justice in order to register for the Correctional Officer Basic Recruit Training Course.
Findings Of Fact The Petitioner is an applicant to become a corrections officer. As such, she was required to take and pass the BAT as a prerequisite to the Corrections Officer Basic Recruit Training course. It was Petitioner’s intention to take the requisite course offered at Miami-Dade College. The Respondent is the state agency responsible for the licensing and certification of all corrections officers. On February 7, 2002, the Petitioner took the BAT for corrections officers. The Petitioner scored a 58 percent on the BAT and was given a “fail.” In order to pass the BAT, a score of 68 percent must be achieved. Those who fail the BAT may retake the test not sooner than 30 days after the original test administration date. According to the Petitioner, she did not understand that she had failed the BAT. Petitioner alleged that two men who she thought worked for Miami-Dade County advised her that she had passed the examination. More specifically, the men told Petitioner of the need for Haitian corrections officers and they promised to help her obtain employment as a corrections officer. In return, the Petitioner was to pay the men a certain amount of money as compensation for their help. In truth, the men were not connected to Miami-Dade County. There is no evidence that such individuals were authorized to procure Haitians such as this Petitioner for employment as corrections officers. Moreover, the test results that they furnished to Petitioner, which she then gave to Miami- Dade College, represented she had taken the BAT on March 7, 2002. Petitioner did not take the examination on March 7, 2002. The BAT results dated March 7, 2002 represented Petitioner had achieved a “pass” on the test. Petitioner knew or should have known that a test date of March 7, 2002, was not accurate or possible since she did not take the BAT on that date. Additionally, she should have realized that the only test date that could be stated as her own was February 7, 2002 as that was the only date Petitioner took the BAT. In order to register for the corrections officer basic recruit course at Miami-Dade College, Petitioner gave the BAT results with the March 7, 2002, date to the registering agent. The March 7, 2002, “pass” result did not accurately reflect the Petitioner’s performance on the BAT. The Petitioner maintains that the two men who sought her money in exchange for their help in obtaining the corrections officer job perpetrated any wrongdoing and that she was an innocent dupe in their plot. Neither of the individuals testified in this case, and according to Petitioner, their whereabouts is unknown. The Petitioner turned in the March 7, 2002, BAT results in order to register for the basic recruit course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order disqualifying the Petitioner from taking the BAT for a period of five years in accordance with Florida Administrative Code Rule 11B-35.0011(5). S DONE AND ENTERED this 8th day of March, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 8th day of March, 2005. COPIES FURNISHED: Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Ronald J. Cohen, Esquire Ronald J. Cohen, P.A. 8100 Oak Lane, Suite 403 Miami Lakes, Florida 33016
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
