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.
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
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 The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Tanika Parker was certified as a correctional officer in the State of Florida by the Criminal Justice Standards and Training Commission on September 9, 2005, and was issued correctional certification number 251547. (admitted fact) From August 13, 2004, until July 13, 2006, Respondent was employed as a correctional officer by the Florida Department of Corrections and was assigned to the Dade Correctional Institution. (admitted fact) On January 9, 2006, Respondent applied for a correctional officer position with the Palm Beach County Sheriff's Office. (admitted fact) On March 10, 2006, as part of the Palm Beach County Sheriff's Office application process, Respondent answered the written question: "Have you had an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee [sic]?" by circling on the form as her response: "No." (admitted fact) Also during March 2006, George Montenegro, a Senior Inspector in the Department of Corrections Inspector General's Office assigned to the Dade Correctional Institution, received information from a confidential informant that Respondent "was involved with" an inmate with the nickname of "Plump." Although an investigation was begun, it was not until early July when a second confidential informant disclosed the identity of Plump. It was inmate Leroy Rogers. Thereafter, Plump's phone calls were monitored, and his cell was searched on July 21, 2006. Among other items in Plump's cell were 34 photographs. At that point Respondent had resigned and was no longer an employee of the Department of Corrections. Since Respondent was in the process of being hired by the Palm Beach County Sheriff's Office, Inspector Montenegro contacted that agency and spoke with Eric Monath, a Sergeant with the Palm Beach County Sheriff's Office Division of Internal Affairs. The 34 photographs taken from Plump's cell included the following: one of a cake inscribed "Happy Birthday Plump"; one with a little girl licking the icing off the cake knife; two of the front of Respondent's residence with the little girl in front; eleven more of the little girl at various locations; one close-up of an adult female's breasts; six close-ups of an adult female's naked genitalia; eight of an adult female's genitalia and/or buttocks either partially or fully covered by underwear; one of a T-shirt decorated with two hearts, one of which was inscribed "Plump" and the other one "Plumpness"; and three of a woman in that T-shirt, wearing some of the same underwear depicted in some of the other pictures. The photos of the naked or clothed woman do not show the woman's face, head, or neck. They only focus on a particular part of the female's anatomy. One of the pictures, however, shows the female from behind with her hands on her hips, and that one reveals a scar or discoloration on the woman's left, inside forearm. On July 27, 2006, Respondent attended an orientation session at the Palm Beach County Sheriff's Office, wearing a sleeveless shirt. Sergeant Monath saw that same identifying mark on Respondent's forearm. On August 1, 2006, Sergeant Monath met with Inspector Montenegro at the Walgreen's near Respondent's residence and presented the photos with the identifying Walgreen's information on the back of each one to the store's manager. The store manager confirmed that the identifying information was for that store and, using it, checked the store's computer records. The customer for whom the photographs were developed was Respondent. Inspector Montenegro and Sergeant Monath then drove to Respondent's residence and compared the front of the structure to the structure depicted in the photographs. It was the same, including the location of the sprinkler head in the front yard. The monitored phone calls made by Plump were to a female who was never identified in the phone calls. However, during one of the calls, the female yelled instructions to someone in the background named Taliyah. Respondent's application for employment by the Palm Beach County Sheriff's Office listed as the only person living with her, her daughter Taliyah Wilcox. Inmate Rogers' visitor log shows that Respondent visited him thirteen times between November 4, 2006, and July 7, 2007. She listed herself as a "personal friend."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her correctional certificate numbered 251547. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2007. COPIES FURNISHED: George G. Lewis, Esquire George G. Lewis, P.A. 950 South Pine Island Road, Suite 150 Plantation, Florida 33324 Sharon S. Traxler, Esquire Department of Law Enforcement - 7100 Post Office Box 1489 Tallahassee, Florida 32304 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Savage is a certified correctional officer in the State of Florida. As such, he holds a position of high trust. Savage abused that trust by lying on his application for employment as a court bailiff in Palm Beach County. The deception came to light between March 4, 2002, and April 15, 2002, when Elizabeth McElroy (McElroy) in her official capacity as background investigator for the Palm Beach County Sheriff’s Office, attempted to verify information provided under oath by Savage, and to search law enforcement databases to assure that he had been truthful in claiming that he had no criminal record. Instead, McElroy's investigation revealed that Savage failed to disclose two arrests, one of which involved the use of a firearm. Florida law requires, as a minimum qualification for its correctional officers, that they be of good moral character. Florida law further provides that officers who lack good moral character, or who make false statements under oath, may be stripped of their license to serve in law enforcement. The public has every right to expect that those who work in law enforcement will, at a minimum, tell the truth under oath. Individuals can be rehabilitated and can go on to occupy positions of trust, but that decision is to be made by duly authorized licensing authorities acting upon complete information. It should not be necessary for a background investigator to have to unearth information which the individual concealed on an employment application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Savage's correctional certificate be permanently revoked. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 3rd day of September, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Savage 7547 Edisto Drive Lake Worth, Florida 33467
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
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on October 2, 1981, and was issued certificate number 02- 29012. On September 7, 1985, the Respondent, who was then employed as a policeman by the town of Mount Dora, arrested Roger Bivins for driving under the influence of alcohol and speeding. Subsequent to arresting Mr. Bivins, the Respondent transported him to the Lake County, Florida, jail for booking. The Respondent and Mr. Bivins entered the jail booking room at about 4:15 a.m. Sergeant Paul Bass and Officer Edward Johnson, jail correctional officers, were on duty in the booking room at the time. The Respondent instructed Mr. Bivins to be seated on a bench in the booking room. Mr. Bivins, whose hands were handcuffed behind his back, complied. The Respondent checked the arrest affidavit and booking sheet which had been prepared in connection with the arrest of Mr. Bivins, and submitted them to Sergeant Bass for approval. The Respondent then turned his attention to Mr. Bivins who sat on the bench. The Respondent asked Mr. Bivins if "he could have his handcuffs back." Mr. Bivins answered "no" and added that he intended to have a lawyer "take care of it." Mr. Bivins offered no physical resistance, nor did he physically threaten the Respondent. The Respondent became angry and shouted at Mr. Bivins. The Respondent said he could "take his gun and badge off." The Respondent then grabbed Mr. Bivins by the arm, stood him up, and hurled him very hard head-long four to five feet into some steel jail bars. Mr. Bivins, who was still handcuffed with his hands behind him, could not catch himself. Mr. Bivins struck the bars with the right cheek of his face and then fell backward onto his back, dazed. His face and back were injured as a result. Sergeant Bass intervened and assisted Mr. Bivins to a nearby desk. Sergeant Bass observed an injury to Mr. Bivins' face and observed "seven or eight welts" on Mr. Bivins' back. Sergeant Bass was concerned about these injuries and contacted the jail nurse, Mary Jo Robbins. Ms. Robbins, a licensed practical nurse employed by the Lake County Jail, saw Mr. Bivins at about 4:55 a.m. Ms. Robbins observed the welts on Mr. Bivins' back and hematomas under his right eye. The hematomas appeared "purplish" and swollen to Ms. Robbins who concluded Mr. Bivins had suffered a "pretty hard lick." Ms. Robbins gave Mr. Bivins Tylenol capsules for his pain, and recommended that he go to the hospital to get an X-ray of his face because the force of the blow suffered by Mr. Bivins could have fractured a facial bone. Although no bone was broken, Mr. Bivins suffered pain for two to three days thereafter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that certificate number 02-29012 held by the Respondent, Milton J. Tinis, be revoked. Hearing Officer WILLIAM B. THOMAS 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 22nd day of July, 1987. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Mr. Milton J. Tinis 1502 Tyringham Road Eustis, Florida 32726 Rod Caswell, 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 Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether just cause exists, pursuant to section 1012.33(1)(a), Florida Statutes, for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32. Respondent has been employed as a teacher in the Broward County Public School District, pursuant to a professional services contract, for approximately five years. Before that, she was a teacher in the Miami-Dade County School System for approximately six years. During the timeframe relevant to this proceeding, the 2010-2011 school year, Respondent was employed as a language arts teacher at Driftwood Middle School. The undisputed evidence established that Respondent is a very good teacher who enjoyed excellent rapport with students and parents, did not experience discipline problems in her classroom, and was very dependable and efficient. She routinely received "highly effective" teaching evaluations ratings. Respondent is married to Darren Jones, Sr., and is the mother of three children, D.B.J., D.S.J., and D.J.J.3/ At the time of the events giving rise to this proceeding, D.B.J. was 16 years old, D.S.J. was nine years old, and D.J.J. was six years old. Events Giving Rise to this Proceeding The December 26, 2010, Incident The primary event that precipitated this proceeding occurred on or about December 26, 2010. That day, Respondent, Darren Jones, D.B.J., D.S.J., and D.J.J. went to church. After they returned home, a dispute arose between D.B.J., Darren Jones, and Respondent regarding D.B.J.'s use of Facebook and other issues related to her behavior. Over a period of approximately two years leading up to the December 26, 2010 incident, numerous disputes had arisen between D.B.J., Darren Jones, and Respondent over D.B.J.'s behavior. As a result, D.B.J. often was disciplined through both corporal and non-corporal forms of punishment. The corporal punishment typically was administered by Darren Jones—— who stands six feet, five inches tall——using a belt, and consisted of beatings ranging from minor to severe.4/ When Darren Jones administered corporal punishment, Respondent typically was present and neither objected nor intervened to stop the punishment. At the time of the December 26, 2010 dispute, the family was in the kitchen and Darren Jones was preparing dinner. As the dispute escalated, Darren Jones ordered D.B.J. to go upstairs to her parents' master bedroom to receive a beating. D.B.J. went upstairs to prepare herself for the beating.5/ At the time, she was wearing a long-sleeved shirt and jeans. Darren Jones also summoned Respondent, D.S.J., and D.J.J. to the master bedroom to witness him beat D.B.J. D.S.J. and D.J.J. were forced to witness the beating so that they would understand what would happen to them if they misbehaved. Darren Jones ordered D.B.J. to lie down on the bed. Using an extension cord, he repeatedly struck her on her hands, arms, shoulders, back, thighs, ankles, and buttocks. At some point during the beating, D.B.J. rolled off the bed and onto the floor in an attempt to escape the blows, but Darren Jones continued to strike her with the cord. During this beating, Respondent was present and witnessed the entire episode but did not intervene to stop Darren Jones from beating D.B.J. Respondent also did not excuse D.S.J. or D.J.J. from witnessing the beating. During the course of the beating, D.B.J. urinated on herself. After the beating was over, she went to the bathroom to clean herself up and run cold water over her hands to help alleviate the pain and enable her to move her fingers. Following the beating, D.B.J. was summoned downstairs for the family dinner. She testified, credibly, that she was injured to the extent that she had difficulty getting down the stairs, but neither asked for nor received assistance from anyone. D.B.J. suffered severe pain during and after the beating. As noted above, she was so traumatized during the beating that she urinated on herself. She was severely bruised and suffered cuts on, and significant swelling of, various parts of her body.6/ Her hands were so swollen that they were clenched and she was unable to fully open them or move her fingers for days after the beating. She continued to suffer swelling and pain for at least a month after the beating. At no time on December 26, 2010, did Respondent check to see if D.B.J. was injured as a result of the beating. It was not until the following day that Respondent became aware that D.B.J. had been injured, when she went upstairs to wake D.B.J. and noticed that she had not changed her clothing from the previous day. At that point, D.B.J. told Respondent she was injured and Respondent observed that D.B.J.'s skin was broken as a result of the beating. Respondent's explanation as to why she did not know that D.B.J. was injured until the following day is that D.B.J. did not tell her she was injured. Upon discovering that D.B.J. was injured, Respondent gave D.B.J. ice to put on her hands and Neosporin cream for the cuts. Respondent also provided cream to D.B.J. to treat her bruises. Respondent did not contact a physician or otherwise seek medical attention for D.B.J.'s injuries. Other Alleged Conduct There is conflicting evidence regarding whether Darren Jones beat D.B.J. in January 2011. D.B.J. testified that in early January 2011, Darren Jones beat her with a belt and that Respondent was not in the room when the beating occurred. Respondent denied that Darren Jones beat D.B.J. in January 2011. D.S.J. testified that she did not recall Darren Jones beating D.B.J. in January 2011. On balance, the evidence does not persuasively establish that Darren Jones beat D.B.J. in January 2011. However, even if it were shown that such a beating did, in fact, take place, there is no credible evidence establishing that Respondent actually witnessed the beating so as to have been in a position to intervene, had it become severe. The credible evidence establishes that Darren Jones spanked D.J.J. with a belt on December 26, 2010, for sleeping in church and hitting D.S.J. Although the evidence establishes that D.S.J. and D.J.J. may, at times, have been subject to corporal punishment administered by Darren Jones or Respondent, the evidence does not establish that such punishment rose to the level of abuse or that either child was harmed as a result of the punishment. The persuasive evidence does not support a finding that a "pattern" of child abuse existed in the Jones' household or that Respondent participated in or allowed a pattern of abuse to occur. The Investigation On or about January 6, 2011, the Broward County Sheriff's Office ("BSO") received a complaint through the child abuse reporting system regarding the alleged abuse of D.B.J. by Darren Jones.7/ As a result, on or about January 11, 2011, a BSO Child Protective Services investigator and deputy were sent to the Jones' residence. The investigator interviewed D.B.J. and observed her injuries, and ordered Respondent and Darren Jones to bring the children to the clinic for physical examination. On the evening of January 14, 2011, Respondent and Darren Jones took D.B.J., D.S.J., and D.J.J. to the Nancy J. Cotterman Center ("NJCC"), where they were interviewed and physically examined by Detective Ann Suter and Dr. Jason Shulman. Dr. Shulman is a pediatric physician who, as part of his medical practice, works with Broward County's Child Protection Team. Dr. Shulman was working at the NJCC on the night of January 14, 2011, when D.B.J., D.S.J., and D.J.J. were brought in for examination. That night, Dr. Shulman examined D.B.J. and took 101 photographs of her body as part of the investigation to determine whether she had been subjected to abuse. The photographs showed that as a result of the December 26, 2010 beating, D.B.J. had numerous scabs, marks, bruises, and scars on her hands, arms, shoulders, back, legs, thighs, ankles, and buttocks. Even though nearly three weeks had passed since she was beaten, some of the places on D.B.J.'s body where she was struck with the cord still were open or scabbed. Many of these scabs, marks, bruises, and scars were curvilinear in shape, showing the cuts and impressions left on and in D.B.J.'s skin by the looped extension cord used to beat her. The photographs also showed swelling and extensive bruising and discoloration of D.B.J.'s body, particularly on her hands, ankles, back, thighs, and buttocks. At the time of the examination, D.B.J. still was experiencing pain from the beating. Although the testimony at hearing did not precisely establish how many blows Darren Jones landed on D.B.J.'s body,8/ the photographic evidence appears to show as many as 60 discrete marks on her body made by the beating. Under any circumstances, the evidence clearly shows that the beating was not "quick" and consisted of far more than a few blows. During his examination of D.B.J., Dr. Shulman interviewed her to determine how she had suffered the injuries. D.B.J. told Dr. Shulman that she had been beaten by her father with an extension cord. After his examination and interview of D.B.J., Dr. Shulman prepared a report of findings in which he found, based on his medical examination and interview of D.B.J., that she had been severely physically abused by Darren Jones. Dr. Shulman's report recommended that D.B.J., D.S.J., and D.J.J. be removed from the home and provided safe alternative placement. On January 14, 2011, D.B.J., D.S.J., and D.J.J. were removed from the Jones home and placed in the protective custody of ChildNet.9/ On or about January 15, 2011, Darren Jones was arrested and charged with aggravated child abuse, pursuant to section 827.03, Florida Statutes (2010), for the beating he inflicted on D.B.J. on December 26, 2010. The criminal case against Darren Jones was disposed of by nolle prosequi in March 2013. In March 2011, Respondent was arrested and charged with three counts of neglect of a child, pursuant to section 827.03(3)(a). The criminal case against Respondent was disposed of by nolle prosequi in March 2013. In September 2011, after Respondent and Darren Jones had received individual and family counseling, D.S.J. and D.J.J. were returned to reside in the Jones' home. The Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Juvenile Division, determined in Case No. 2011-471 CJ-DP(A) that, pursuant to section 39.01(2), Florida Statutes, Darren Jones physically, emotionally, and/or mentally abused D.B.J. by beating her with an extension cord.10/ The court ordered that D.B.J. be permanently removed from the Jones home and placed in foster care with the Department of Children and Families. D.B.J. remained in foster care until she no longer was a minor.11/ The Final Hearing At the final hearing, Respondent claimed that in hindsight, she would have stopped Darren Jones' beating of D.B.J. had she known that he was going to use a cord or that D.B.J. would suffer continual pain as a result of the beating. Respondent claimed that she did not intervene at the time because, based on her own childhood experiences of being beaten by her mother, she did not view the beating rendered by Darren Jones on D.B.J. as constituting child abuse. Even after seeing the photographs of D.B.J.'s injuries taken by Dr. Shulman almost three weeks after the beating, she did not characterize it as "severe." Respondent testified that had the beating gone on for what she considered an "excessive amount of time," she would have intervened. She characterized the beating as, rather, "a very quick discipline." Respondent and her husband act as a team in raising their children and support each other, rather than intervening and undercutting each other, in disciplining the children. Respondent testified, credibly, that she is not afraid of her husband and does not believe he would have hit her had she intervened to stop the beating of D.B.J. Respondent expressed regret at the turn of events resulting from the beating. She is sorry that D.B.J. was injured by the beating, and clearly is sorry about the consequences of the beating——the arrests of her and Darren Jones, her husband's job loss and resulting financial difficulties, loss of their home and car, and loss of custody of their children for a period of time. The sole evidence regarding the notoriety element of the immorality charge against Respondent consisted of a general statement by Driftwood Middle School principal Steven Williams that he was aware of the allegations regarding Respondent "based on the media" but was not familiar with the details of the case; no specific evidence was presented regarding the notoriety of Respondent's conduct. The record also is devoid of evidence showing that Respondent's conduct brought her or the education profession into public disgrace or disrespect and impaired her service in the community. Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate her employment as a teacher on the basis of just cause,12/ pursuant to section 1012.33(1)(a), and Florida Administrative Code Rule 6A-5.056.13/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Also as more fully addressed below, the determination whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged offense. Immorality Based on the evidence presented, it is determined that Petitioner did not prove that Respondent's conduct amounted to immorality, as defined in rule 6A-5.056(2). There is no question that Respondent's conduct was inconsistent with the standards of public conscience and good morals. It is hard to envision that, absent duress or imminent threat, a person having a conscience and being of good moral fiber could witness his or her own child being severely beaten with an extension cord and not intervene to stop the beating—— regardless of the circumstances that precipitated the beating. This is particularly the case when that person is entrusted in his or her professional life with ensuring the safety of children. It is also hard to envision that a person having a conscience and being of good moral fiber would force nine- and six-year-old children to witness the beating. However, the evidence does not establish the existence of the other elements necessary for a finding of immorality under rule 6A-5.056(2). Although there is some evidence generally establishing that there was media coverage of Respondent's removal from her employment position, no specific evidence was presented regarding coverage of her underlying conduct. Thus, there is no evidence from which the undersigned can infer "notoriety." Further, Respondent's conduct took place in a completely private setting——her own home. Under these circumstances, impairment of service in the community cannot be inferred and must specifically be shown by the evidence.14/ Here, the record is devoid of such evidence, so the undersigned cannot infer that this element is met. Accordingly, it is determined that Respondent did not engage in conduct constituting immorality under rule 6A- 5.056(2). Moral Turpitude It also is determined that just cause does not exist under section 1012.33(1)(a) to suspend and terminate Respondent on the basis of moral turpitude. Unquestionably, Respondent's conduct in choosing not to intervene to stop Darren Jones' severe beating of D.B.J. with an extension cord, and in forcing her two younger children to watch their sister suffer the beating, involved acts of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general. The undersigned rejects Respondent's claims that Darren Jones' beating of D.B.J. was a "quick discipline." The photographic evidence, supported by Dr. Shulman's testimony, establishes that D.B.J. was struck with the cord numerous times ——perhaps as many as 60, based on the photographic evidence——and in any event, more than 30 times. The sheer number of blows to D.B.J.'s body belies any credible claim that the beating was of short duration; this beating took place over a period of minutes. Respondent had more than ample time to intervene, but chose not to. Further, she subjected her two very young children to mental trauma by forcing them to witness their sister being beaten. The undersigned also finds incredible Respondent's claim that she did not perceive Darren Jones' beating of D.B.J. as severe when it occurred. Darren Jones is a large man, approximately six feet, five inches tall. Using an extension cord, he struck D.B.J. numerous times with such force that even through her jeans and long-sleeved shirt, D.B.J. was so severely lacerated and bruised that almost three weeks later, she still was experiencing pain and bruising and her wounds had not fully healed. Respondent's conduct in standing by and watching a sixteen-year-old girl receive such a severe beating without intervening, while forcing nine- and six-year-old children to watch, is indicative of baseness, vileness or depravity in the private duties, which, according to the accepted standards of the time, a man owes to his or her fellow man. However, as more fully discussed below, section 1012.33(1)(a) requires, for a finding of just cause on the basis of moral turpitude, that the person be "convicted of or found guilty of, or [enter] a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." § 1012.33(1)(a), Fla. Stat. (2010). Here, the criminal charges against Respondent were disposed of by nolle prosequi. She was not convicted of or found guilty of, and did not enter a plea of guilty to, any crime involving moral turpitude. Accordingly, the undersigned is constrained to find that just cause, pursuant to section 1012.33(1)(a), does not exist to suspend Respondent without pay and terminate her employment on the basis of moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order finding that there is no just cause, pursuant to section 1012.33(1)(a), Florida Statutes, to suspend Respondent without pay and terminate her employment; reinstating her employment as a teacher with the Broward County School System; and awarding back pay commencing on the date of her suspension. DONE AND ENTERED this 15th day of July, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2014.
The Issue The issue to be determined is the amount of attorneys’ fees and costs to be awarded to Petitioners pursuant to section 120.595(3), Florida Statutes (2012).
Findings Of Fact Petitioners, Okaloosa County and Nassau County, filed a challenge to existing rules of the Department of Juvenile Justice pursuant to section 120.56, Florida Statutes, on the basis that the rules conflicted with section 985.686, Florida Statutes, the law implemented. Okaloosa Cnty. & Nassau Cnty. v. Dep’t of Juv. Just., DOAH Case No. 12-0891RX (Fla. DOAH July 17, 2012). The Petition specifically alleged that “Petitioners are obligated to pay their attorneys a reasonable fee and are entitled to recover their reasonable costs and attorneys’ fees under section 120.595(3), Florida Statutes,” and requested an award of attorneys’ fees and costs pursuant to the same. On July 17, 2012, after a final hearing, the undersigned entered a Final Order invalidating the Challenged Rules and determining that an award of attorneys’ fees and costs was appropriate based on section 120.595(3), Florida Statutes. Jurisdiction was retained to determine the appropriate amount of fees and costs. The Department appealed the Final Order in DOAH Case No. 12-0891RX, and on June 5, 2013, the First District Court of Appeal affirmed by written opinion the Final Order. Dep’t of Juv. Just. v. Okaloosa Cnty., Case No. 1D12-3929, 38 Fla. L. Weekly D 1249 (Fla. 1st DCA June 5, 2013). Petitioners established by affidavit (attached to their Motion for Award of Attorneys’ Fees and Costs) that they were billed a total of $89,580.00 in attorneys’ fees for services directly related to prosecuting DOAH Case No. 12-0891RX. The hourly rates charged for the work of the attorneys involved in the case, as well as the amount of time expended on each task, are reasonable. Since Petitioners incurred attorneys’ fees and costs well in excess of $50,000.00, they are seeking the maximum attorneys’ fees and costs award allowable pursuant to section 120.595(3), which is $50,000.00. While no formal written stipulation as to the appropriate amount of attorneys’ fees and costs has been filed in this case, there is no indication in this record that the Department disputes the reasonableness of the $50,000.00 award being sought by Petitioners. To the contrary, Petitioners filed a series of e-mail communications between counsel for Petitioners and the Department reflecting that the Department “does not dispute the 50K figure and will pay it” after the appeal is resolved if the Department does not prevail. In addition, the Department’s Motion to Deny the Awarding of Attorneys’ Fees contains the statement that “Respondent stipulated to awarding Petitioners $50,000.00 in attorneys’ fees ” Petitioners have established that the requested award of $50,000.00 in attorneys’ fees and costs is reasonable.
