The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 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 The issue to be determined is whether Respondent, Brian T. Hart (“Respondent” or “Mr. Hart”), failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and if so, what penalty should be imposed?
Findings Of Fact No direct evidence was presented at hearing to establish that Respondent held a certification issued by the Criminal Justice Standards and Training Commission. However, at all times relevant to these proceedings, Respondent was employed by the Tallahassee Police Department (“TPD”) as a police officer. Evidence was presented that he had been hired by the Tampa Police Department, and Respondent was identified consistently as a “cop” or “officer.” It does not appear from the record that Respondent’s status as a certified law enforcement officer is in dispute in this proceeding. On or about August 15, 2011, an Order of Judgment and Sentence was filed in the Second Judicial Circuit, in Leon County, in the case of State of Florida v. Brian Hart, Case No. 2011-MM511. Although there was testimony indicating that Respondent was convicted by a jury of his peers, the Order of Judgment and Sentence does not indicate whether the judgment, for which adjudication was withheld, was a result of a plea of guilty or nolo contendere, or as a result of a trial. Respondent, his counsel, and the Assistant State Attorney signed the document, implying that it was more likely a result of a plea agreement of some sort. In any event, adjudication was withheld and Respondent was sentenced to 12 months’ probation, with no contact with the victim, and random alcohol screens.1/ Officer Gregory Wilder investigated the allegation of battery lodged against Respondent. The charge stemmed from an incident at AJ’s Sports Bar (“AJ’s”) where Respondent allegedly grabbed a female patron at the back of the neck and pushed her head down to his crotch. While Officer Wilder testified regarding his investigation of the incident leading to the battery charge against Respondent, he was not present when the alleged battery occurred and did not have responsibility for the investigation until the day after the incident. No competent evidence was presented to demonstrate the basis for the battery charge, in that no person who was involved in or a witness to the incident testified at hearing. Respondent admitted being at AJ’s the night of the alleged incident, and consuming several alcoholic beverages, but consistently denied any memory of interaction with the victim. In the course of Officer Wilder’s investigation, he received information indicating that Respondent was or had been involved in an abusive domestic relationship with his girlfriend, Lauren Bauer. Officer Wilder arranged to speak with Ms. Bauer to ask her about her relationship with Respondent. Ms. Bauer met with Officer Wilder at the police department on January 11, 2011, at his request. Consistent with her testimony at hearing, Ms. Bauer indicated that she began seeing Respondent in March 2010, and during that time she maintained her own apartment but slept most of the time at Respondent’s apartment. Respondent’s relationship with Ms. Bauer lasted for approximately ten months. During that time, the couple had discussed getting married and moving to Tampa. Ultimately, Ms. Bauer had concerns about Respondent’s drinking and problems with anger management, which led to the termination of the relationship approximately two weeks before she spoke to Officer Wilder. During the course of the relationship, Respondent was verbally and physically abusive toward Ms. Bauer. The abuse began as verbal outbursts, and escalated to physical abuse approximately 2-3 months into the relationship, when he threw a water bottle at her and hit her in the forehead. On another occasion, sometime in late summer of 2010, he held her in a chokehold in order to take his phone from her, and spit in her face repeatedly. On October 26, 2010, Ms. Bauer had planned a party at AJ’s Sports Bar for her brother’s 21st birthday. She had asked Respondent to attend the party while she was planning the event. The night before, however, the two of them had a fight. On the evening of the party, Respondent called Ms. Bauer and asked her to come over to his apartment so that they could “make up” and he could go with her to the event. However, when she arrived at Respondent’s apartment, Respondent was already intoxicated. Ms. Bauer testified that there were four bottles of wine on the table, that Respondent’s speech was slurred, and that he smelled of alcohol. Given Respondent’s condition, Ms. Bauer decided it would be better if Respondent did not attend the party, but Respondent was insistent that he would attend. When she went to her car to leave, he followed her and tried to prevent her from entering the car. While she was able to get in the car and leave the premises, it was not before he hit her car door and tried pulling her out of the car. Ms. Bauer picked up a friend and both went to the party for her brother at AJ’s. Despite her asking Respondent not to attend, he showed up at AJ’s, still clearly intoxicated, and kept trying to talk to her. She asked him to go home, and he refused, grabbing her arm and pulling her off of her barstool. Ms. Bauer did not want a confrontation and was afraid that Respondent would hit her in public. To avoid any further confrontation, she cashed out and left the sports bar. Ms. Bauer attempted to but did not obtain an injunction against Respondent to leave her alone. No competent evidence was received with respect to why the injunction was denied. From the evidence presented, Respondent and Ms. Bauer had an “on again-off again” relationship, and she had continued to see him even after experiencing abuse. However, Officer Angie Booth testified credibly that it is not uncommon for victims to continue a relationship that includes abuse. Ms. Bauer’s testimony that she hoped Respondent could resolve his anger management and alcohol issues is credited. Investigator Wilder completed a probable cause affidavit and forwarded the domestic abuse investigation to the State Attorney’s Office for review. Although charges were filed, the case was never prosecuted because of an unspecified “legal technicality” related to the timing of the charge. Once the battery charges were filed, the TPD suspended Respondent and placed him on administrative leave. In addition, the TPD initiated an internal affairs investigation, which was conducted by Investigator Angie Booth. As a result of the investigation, on April 18th, 2011, Investigator Booth completed an Internal Affairs Unit report, and recommended that Respondent violated the TPD’s General Order 46 in three respects: that he committed conduct unbecoming an officer; a violation of laws or rules; and alcohol abuse. All three recommendations were sustained, and Respondent’s employment with the TPD was terminated. Respondent contends that Ms. Bauer is simply bitter and vengeful over the break in their relationship. While he admits that they often argued, he claims that he never abused her, and points to the fact that the TPD investigation did not include physical evidence of abuse. Ms. Bauer, however, did not initiate the investigation against Respondent. She was contacted by law enforcement because of information gained from other sources pointing to an abusive relationship. Ms. Bauer testified credibly about the volatile nature of the relationship, and her testimony that she suffered abuse at Respondent’s hands is credited.
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 finding that Respondent failed to maintain good moral character as defined by rule 11B- 27.0011(4)(b)3., in violation of section 943.1395(7). It is further recommended that Respondent’s certification be suspended for a period of one year, followed by probation for one year. It is also recommended that as a condition of probation, the Commission consider requiring courses and/or counseling to address anger management and substance abuse. DONE AND ENTERED this 1st day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2013.
The Issue The first issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011), as alleged in the Administrative Complaint. If so, the second issue for consideration is what penalty should be imposed for such a violation.
Findings Of Fact At all times relevant to this proceeding, Respondent was a certified law enforcement officer, having been issued Law Enforcement Certificate Number 194525 by the Criminal Justice Standards and Training Commission. At the time of the incident in question, Respondent was employed by the FHP. For an unspecified time prior to July 11, 2011, Respondent was involved in a relationship with a woman named Tamarah Rasmussen. For some period, she shared his home with him. However, in the weeks or months preceding July 11, 2011, the couple’s relationship had deteriorated, and Respondent wanted it to end. He had, however, allowed her to remain in the home “as a friend.” On July 10, 2011, the couple had a fight, and Respondent left the house. On July 11, 2011, Respondent returned to the home after his work shift, and told Ms. Rasmussen that he wanted their relationship to end. Respondent told her he wanted to sleep in a separate bed, and took the mattress pad off of a bed in a bedroom downstairs and put it on a separate bed upstairs. Ms. Rasmussen reacted by taking the mattress pad off of the second bed and throwing it out the window. Respondent retrieved the mattress pad. Ms. Rasmussen then poured a container of water on the bed where Respondent intended to sleep. Respondent turned on the video function on his cellular phone and asked Ms. Rasmussen about her actions. She responded by telling him he was a fool and an idiot, and that he was crazy. In what can be gleaned from the tape, Respondent asked her to take her things and leave. Instead, Ms. Rasmussen approached Respondent trying to get his phone as he started to go upstairs, and began hitting him. He can be heard on the cell phone recording repeatedly asking her to stop. Ms. Rasmussen repeatedly answered “no,” and “this was good enough for you last night,” and the sound of her striking Respondent can be heard clearly. This altercation occurred as Respondent attempted to retreat up the stairs. At one point, Respondent exclaimed that Ms. Rasmussen had hit him in the face, and Ms. Rasmussen responds, “yeah, I did.” Respondent and Ms. Rasmussen end up in what appears to be a walk-in closet upstairs. At that point, Respondent told Ms. Rasmussen that she was “going down,” and that he would “arrest her myself.” Respondent appeared to be out of breath. Ms. Rasmussen responded by telling him repeatedly that she was not under arrest and he was not arresting her for anything. She told him several times to stop, and to “get off of her,” stating that she could not breathe. Eventually, she told him that he had won, and asked him to help her up. Ms. Rasmussen testified that Respondent dragged her up the stairs, hitting her head on the stairwell on the way up. She testified further that he slammed her against the wall, handcuffed her behind her back, and was sitting on top of her while he did so, and while she pleaded with him to stop. According to her, Respondent hit her several times during the time they were in the closet, and then dragged her back down the stairs by the chain on the handcuffs. She also stated that Respondent threatened to kill her, saying that if he did so he could dispose of her body in the pond on the property and no one would know unless they drained the pond. Respondent, on the other hand, testified that Ms. Rasmussen began hitting him around the head and neck, and he was retreating up the stairs in an effort to get away from her, telling her repeatedly to stop. He testified that once they reached the closet, he told her he was arresting her and placed her hands behind her back in order to handcuff her. When she told him he was not arresting her for anything, he warned her not to “make me Taze you,” and finished placing the handcuffs on her wrists, behind her back. Respondent denied sitting on Ms. Rasmussen, saying that he knelt on one knee with one foot flat on the floor, and with Ms. Rasmussen secured between his legs, as he learned in law enforcement training. While Ms. Rasmussen testified that he dragged her down the stairs of the house and then threw her down the outside steps, Respondent testified that he carried her down the stairs of the home so as not to injure her, but that she was resisting him. While the taped recording contained sounds indicating that Respondent was being hit by Ms. Rasmussen going up the stairs, the same is not true with respect to the descent. Ms. Rasmussen can be heard telling Respondent to stop, but there is no sound that can be attributed to her head banging against the wall or anyone being dragged down the stairs. Once they were both downstairs, Respondent called in a “1024” on his FHP radio, which means “officer in jeopardy, send help as soon as possible.” The consensus of those officers testifying was that this call is rarely used and is the equivalent of “calling the calvary,” because the officer needs help immediately. Both Rasmussen and Respondent exited the home once the 1024 call was placed. Rasmussen testified at hearing that Respondent offered to take the handcuffs off of her and she refused the offer, saying that she wanted the responding officers to “see me exactly this way.” She got in his truck, which was parked near his locked law enforcement vehicle, and shut the door to get out of the rain. Law enforcement responding to the 1024 call were Marcus Bailey, an investigator with the Bay County Sheriff’s Office; FHP Major Eddie Johnson; and Lieutenant Davis Ward of the Bay County Sheriff’s Office. Their arrival at the home was approximately twelve minutes from the call being received by the FHP dispatcher. The Bay County Sheriff’s Office conducted the investigation of the matter, and because a law enforcement officer was involved, the investigation was conducted by supervisors. As a result of the incident, Respondent was placed on administrative duty on July 11, 2012, and terminated from the FHP July 16, 2012. The officers who responded all saw the video of the cell phone recording, which was also played several times during the course of the hearing. While, curiously, two of the three refer to Respondent as “taunting” Ms. Rasmussen at the beginning of the video, the video does not display or record anything that the undersigned could describe as taunting. It portrayed Respondent expressing dismay at Ms. Rasmussen’s behavior; Respondent requesting that she get her things and leave; Ms. Rasmussen’s angry response; the sounds of Ms. Rasmussen hitting Respondent; Responding placing her under arrest and reciting her rights; and Ms. Rasmussen’s angry response and cries for help and for Respondent to let her go. Respondent’s supervisor, Sergeant Ronnie Baker, testified that Respondent was a great employee who went “above and beyond,” and who prior to this incident (which Sergeant Baker did not witness), had no complaints against him. Sergeant Baker, among others, testified that Ms. Rasmussen had a reputation for untruthfulness. The undersigned reviewed the tape several times. It is of limited assistance in deciphering what is, in reality, an event where the only witnesses are the participants, Respondent and Ms. Rasmussen. However, after listening to the tape and observing the demeanor of witnesses (both at hearing and in the tape), Ms. Rasmussen’s account of the incident is simply not credible. The sounds on the tape clearly support the testimony that Ms. Rasmussen was hitting Respondent repeatedly as they went up the stairs. There are no corresponding sounds to support her contention that he slammed her head into the wall or dragged her down the stairs. Moreover, the pictures of Ms. Rasmussen do not clearly depict bruising or swelling consistent with her description of the incident. There are slight red marks on Ms. Rasmussen’s wrists, but they do not provide clear and convincing evidence that he dragged her anywhere, much less down the stairs. The marks on her arms are just as likely to indicate her resisting his efforts to carry her down the stairs. Moreover, her claim that he threatened to kill her and dispose of her body in the pond on the property is totally inconsistent with Respondent’s actions in placing a 1024 request for assistance, and waiting at the front of the property for assistance to arrive. The Administrative Complaint charges Respondent with use of excessive force by slamming Ms. Rasmussen’s head and/or placing handcuffs on the victim tightly and/or dragging her down the stairs while handcuffed. There is no clear and convincing evidence that Respondent slammed Ms. Rasmussen’s head against anything; that he put the handcuffs on her too tightly; or that he dragged her down the stairs while handcuffed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2013. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Philip S. Spaziante (Address of record) Sandra Renee Coulter, Esquire Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Florida Real Estate Commission (Commission) lawfully denied the application of Bradford Nutting (Petitioner) for licensure as a Florida real estate broker.
Findings Of Fact The Commission is the agency responsible for regulating the practice of real estate sales in Florida. Sometime in 2003, Petitioner applied for licensure as a real estate sales associate. In the application form for this license, Petitioner disclosed that he had been convicted, found guilty, or entered a plea of nolo contendere to three crimes: driving under the influence (DUI) in 1990, possession of a controlled substance in 1991, and another DUI in 2001. The Commission issued Petitioner a license as a real estate sales associate, and Petitioner currently works as a real estate sales associate. The Commission has never taken disciplinary action against Petitioner's current license. In May 2005, Petitioner applied for licensure as a Florida real estate broker. That is the application which is the subject of this case. In his broker's license application, Petitioner disclosed that he was convicted of three counts of domestic violence in November 2003 to which he pled nolo contendere. For these crimes, Petitioner was ordered to serve three years of probation. In May 2005, shortly after he applied for his broker license, Petitioner was convicted of one count of assault and one count of domestic violence. For these most recent offenses, Petitioner was sentenced to probation and ordered to attend a 26-week batterer's intervention program. Petitioner completed the intervention program, but he is still on probation. The matter of Petitioner's broker's license application was heard by the Commission in a public hearing held on August 16, 2005. With regard to the 2003 and 2005 convictions for domestic violence, Petitioner claimed to have pled to the crimes to avoid more serious charges made by his ex-wife and the possibility of going to prison. When asked whether his client was claiming to be innocent of the charges made by his wife, Petitioner's attorney replied, "Well, I don't know if you're totally innocent--I've never seen someone totally innocent." At the hearing before the Commission, Petitioner's testimony regarding the circumstances of the domestic violence incidents was evasive, ambiguous, and less than candid. One Commissioner tried, without success, to get Petitioner to explain the circumstances of the domestic violence convictions: Commissioner: What exactly happened that caused you to plea to those cases? Petitioner: It started with an incident . . . at my mother's condominium. And over a period of over approximately a week, all these various things happened. I basically got -- Commissioner: What happened? Petitioner: Well she kept claiming that -- well, she went out to a bar one night and got beat up. She came to my place of residence and asked me to help her. * * * She came back, you know, two or three days later, started harassing me again. * * * I got in my automobile and tried to leave the state and go back to Georgia, where I'm originally from. She followed me there. Ultimately, I ran to the point of having to stop for gas . . . and had another incident. Commissioner: What was the incident? Petitioner: Well, she was on pain pills again. Commissioner: What did you do that caused you to plead? Petitioner: I'm not sure I understand the question, sir. * * * Commissioner: But what happened to [make you] plead to the assault? Did you ever touch her? Petitioner: I physically touched her, which is, you know, a domestic violence charge. Petitioner showed similar evasiveness and lack of candor at the evidentiary hearing before the undersigned. Even though he pled to three counts of domestic violence in 2003, he claimed not to understand how he came to be charged with three separate counts. That claim is not credible. At the hearing, Petitioner repeated the evasive response he had given the Commission on August 16, 2006, to the effect that any touching amounts to an assault. His obvious purpose in giving this response was to imply that he had merely touched his wife during the incidents for which he was convicted of domestic violence. That claim is also not credible. Based on the more persuasive evidence in the record and taking into consideration the demeanor of Petitioner, his claim that he was not guilty of the crimes for which he was convicted, but pled no contest simply to avoid the possibility that his ex-wife's false charges would result in more serious sentences, is not credible. Every time Petitioner was asked a question about the circumstances of his domestic violence offenses, his answers omitted any description of his own actions and placed all blame on his ex-wife. Petitioner's evasiveness and lack of candor demonstrate his failure to acknowledge and take responsibility for his past actions. Petitioner's rehabilitation will not be complete before that occurs. The testimony by Petitioner's colleagues about his character was not sufficient to establish that Petitioner has been rehabilitated. Except (possibly) for Ms. de Graw, the witnesses were unaware of the circumstances of Petitioner's past convictions. Mr. Romano, who hired Petitioner in his current position as a real estate sales associate and who is Petitioner's supervisor, was unaware of the crimes for which Petitioner had been convicted and was unaware that Petitioner was on probation. Petitioner did not express confidence that he was rehabilitated. Insufficient time has passed from Petitioner's criminal offenses to support a finding that Petitioner is rehabilitated.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order denying Petitioner's application for licensure as a real estate broker. DONE AND ENTERED this 18th day of April, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 18th day of April, 2006.
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Donald W. Del Bello, currently holds Florida teaching certificate number 402600, covering the area of music, which is valid through June 30, 1996. Respondent is currently employed by the Dade County Public School System to teach music at the elementary school level, and was so employed at all times pertinent to these proceedings. In these proceedings, the sole issue for determination was whether, on or about July 23, 1991, at Tropical Park, Dade County, Florida, the respondent exposed his sexual organs in a vulgar or indecent manner. The proof in this case was not, however, sufficiently compelling to satisfactorily resolve the issue raised. To support its case, petitioner offered the testimony of Sergeant James Julian, a police officer with the Metropolitan Dade County Police Department, who testified that on July 23, 1991, while operating undercover at Tropical Park, a public place, in Miami, Dade County, Florida, he observed respondent expose his sexual organs. According to Sergeant Julian, he observed the respondent, dressed in a white shirt, tie and green pants, and another man, dressed in running attire (tennis shoes, blue shorts and top), standing approximately 20 yards apart, and that, while watching each other they rubbed their crotches, removed their penises from their pants, and masturbated. According to Sergeant Julian, he was approximately 10 yards from the respondent and approximately 30 yards from the man in running attire when these events occurred, and that upon observing such activity he placed both men under arrest. Juxtaposed with the proof offered on behalf of petitioner, respondent testified that while he was in the park on the day in question, he was not dressed in a white shirt, tie and green pants but, rather, was wearing running attire (white running shoes, blue shorts and a white tee shirt), that he observed another male dressed in a white shirt, tie and green pants who was masturbating, and that he did not take his penis from his pants, expose himself or masturbate. Respondent's attire on the day in question was reasonably corroborated by two credible witnesses, and his testimony at hearing was consistent with his recitation of what had occurred to his attorney, within an hour of being released from police custody. Here, the proof offered by each of the parties appeared worthy of belief, and it cannot be concluded, based on the record in this case, which version reflects what actually transpired on the day in question. Therefore, considering the fact that the burden of proof in these proceedings rested on petitioner as discussed infra, it must be concluded that the proof fails to support the conclusion that respondent committed the offense as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1993. 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 16th day of February 1993.
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY 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 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue Whether Respondent's employee hit or forcefully grabbed children in care, as alleged in the Administrative Complaint; and, if so, whether Petitioner should impose a fine of $400.00 against Respondent, a licensed child care facility, for the commission, by an employee, of an act that meets the statutory definition of child abuse.
Findings Of Fact At all relevant times, Respondent Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti ("LMCA"), held a Certificate of License, numbered C11MD1532, which authorized LMCA to operate a child care facility (the "School") in Miami Beach, Florida, for the period from June 7, 2016, through December 4, 2016. As a licensed child care facility, LMCA falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). On August 25, 2016, Laura Pantano arrived at the School in the afternoon to pick up her child. While waiting in the reception area, Ms. Pantano noticed the real-time video feeds from the surveillance cameras in the classrooms. These live videos were displayed on multiple monitors in plain view. Ms. Pantano focused her attention on the classroom of Clara Gonzalez-Quintero. Although her child was not in Ms. Quintero's class, Ms. Pantano harbored suspicions that Ms. Quintero had been hitting children. Sure enough, right on cue, Ms. Quintero appeared to forcefully grab and hit a child. It is not disputed in this proceeding that Ms. Quintero used corporal discipline on two children, D.D. and S.M, at the very moment Ms. Pantano happened to be watching the closed-circuit television for just such an occurrence. That said, no one having personal knowledge of the incident in question testified at hearing. Ms. Pantano testified, but she was not actually an eyewitness, for she merely observed live surveillance video on a display device, not the incident itself. Naturally, the surveillance video is in evidence, allowing the undersigned (and anyone else) to see exactly what Ms. Pantano saw that day.1/ Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume that the assertive narrative of this (or any) video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to a genuine occurrence; we perceive only the video, and the video merely represents, imperfectly, the real events captured on camera. Of necessity, each viewer——such as Ms. Pantano, who as stated above was predisposed to believe the worst about Ms. Quintero——projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in the video based upon a critical review of the film in conjunction with a careful consideration of all the available evidence. Had the fact been disputed, the undersigned would have struggled with the question of whether Ms. Quintero "struck" D.D.2/ or merely made incidental nonviolent contact of the sort parents and teachers routinely use when redirecting a disobedient child. One significant limitation of the video is that it lacks sound. During the crucial moments, Ms. Quintero appears to be reprimanding D.D., who was three years old at the time, but if so, the video provides no proof of the reasons, for we cannot hear what she is saying. At the same time, however, it is reasonable to assume that Ms. Quintero had some bona fide basis for approaching D.D., for no evidence to the contrary was offered. On the video, Ms. Quintero appears to pat D.D. on the shoulder while addressing the child. Without audio, however, this action is ambiguous. Is she punishing, exhorting, or encouraging the child? Hard to tell. D.D. seems to put his hands over his ears. Fear, protective response, or defiance? Take your pick. Then — did she just slap him? It happens so fast, the picture is not clear, and the angle of the shot less than ideal. Maybe. Something happened, to be sure, but different viewers will form different conclusions about what the video depicts. Because LMCA concedes the point, and because the filmic evidence, though ambiguous, justifies such acquiescence, the undersigned finds that Ms. Quintero administered a form of physical punishment, which violated both the law3/ and LMCA's written policy on discipline. But the undersigned does not find that the corporal discipline at issue evinced malice or cruelty. The record, in short, convinces the undersigned to find that physical contact occurred, but not violent contact. Believing that she had seen a teacher repeatedly slap a child, Ms. Pantano rushed upstairs to confront Ms. Quintero in the classroom, while she simultaneously called the police on her cellphone. When she arrived in the classroom, excited and crying, Ms. Pantano screamed accusations at the teacher, who denied any wrongdoing. The commotion drew the School's director, Yanet Perez-Cruz, to the room, where she heard Ms. Pantano, in front of the children, uttering a conditional threat to kill Ms. Quintero, the condition being Ms. Pantano's possession of a knife, which fortunately for everyone involved was not met. Within a short time, the police arrived and immediately set to work investigating the incident. Neither D.D. nor any of the other children were found to have visible physical injuries attributable to Ms. Quintero. No evidence of such was presented at hearing, and the undersigned finds that Ms. Quintero did not cause any physical harm to D.D., S.M., or any child at the School on the day in question. LMCA fired Ms. Quintero the next day, not for hurting a child, but for violating its policy on corporal punishment. As for possible mental injury, D.D. was anxious, did not sleep quite as well, and had some instances of bed-wetting after the occurrence with Ms. Quintero, according to his mother. These symptoms, however, reflected at most a marginal aggravation of preexisting conditions, and within a few weeks or so D.D. had returned to his baseline. In addition, D.D. had been receiving speech therapy, for about ten months before the incident, to treat a stutter. In the months following the occurrence at issue, after which he had been abruptly removed from the School and enrolled in another day care facility, D.D. made rapid improvement in his speech, to the point that by the time of the hearing, D.D.'s stutter was nearly gone. The record lacks convincing evidence that D.D.'s intellectual or psychological capacity was injured by Ms. Quintero, as there is no persuasive proof of any discernible and substantial impairment of D.D.'s ability to function within normal limits. To the contrary, the evidence shows that, as of the hearing, D.D. is functioning within the normal ranges of intellectual and psychological performance and not displaying any signs of even mild, much less severe, mental or emotional impairment. With regard to S.M., there is likewise no convincing evidence of any significant mental injury. Similar to D.D., S.M. was observed, by her parent, to be somewhat more anxious than usual following the incident with Ms. Quintero, but this general anxiety resolved before long and was not causing S.M. any problems at the time of the hearing. Other evidence suggests, credibly, that S.M. is (as of the hearing) a happy, intelligent, and normal child evincing no discernable impairments in intellectual or psychological functioning. In sum, neither D.D. nor S.M. suffered any physical harm at the hands of Ms. Quintero, and although there is some (but not clear and convincing) evidence that one or both children might have experienced mild emotional or psychological distress——as manifested by, e.g., bed-wetting or anxiety——in the immediate aftermath of the events at the School on August 25, 2016, it is clear that such symptoms did not persist or substantially impair either child, even briefly, and that within a few months, if not sooner, both D.D. and S.M. were back to normal. At hearing, LMAC presented Michael J. DiTomasso, Ph.D., as an expert witness. Dr. DiTomasso is a clinical psychologist who specializes in forensic psychology and, to the point, child abuse. Indeed, Dr. DiTomasso has testified frequently as an expert for DCF in dependency trials involving child abuse and child neglect. Dr. DiTomasso provided the following credible and convincing overview of the current dispute: Okay. So we have a video recording of some unpleasant behavior on the part of a teacher. And I reviewed this. I looked at it. I actually watched it a couple of times. I see that she hit the kid, she shook the child. She was unpleasant with the children. And I understand that this behavior is prohibited by the school. . . . But does the -- does what we see in this tape rise to something monstrous that we would think is going to cause significant impairment in a child's psychological life somewhere down the line? Maybe the first question is: Did it cause -- does it cause significant physical damage? But everyone says no. The police say no, the mothers say no, the children -- that went to a doctor there's no medical findings. So by every measure, DCF says no. By every measure everyone who considered actual physical damage said no. So, no, we're not at the psychological damage. What we see in these tapes, it's unpleasant, of course. But, I mean, is there anyone, really, who never saw behavior like this before in their lives? In their own family, in their own lives, in a Target. In a Target store, in the K-Mart, we see this kind of behavior. We don't like it, but we're not -- we're not looking at it as catastrophic. We're looking at it as maybe unpleasant to see. And the parents are maybe looking at it as appropriate because parents in America believe in physical discipline of their children, corporal punishment of the children -- of children is accepted by most -- most parents in America and even more here in Florida, in the south. * * * If the corporal punishment causes broken bones or fractures or bruises or welts, oh, we're talking a different name. But that's not what happened for these kids. This was ordinary run-of-the-mill corporal punishment in a place where it shouldn't have happened. But the fact that it happened in a place where it shouldn't have happened doesn't make it a traumatic event that leads to psychological harm down the line. Tr. 351-54. The undersigned agrees with the foregoing description and explanation of the video evidence. The bottom line, according to Dr. DiTomasso, is that no "meaningful disruption of a child's ability to function and enjoy his life" happened, "it's not going to happen, it shouldn't be expected to ever happen based only on the event [at the School on August 25, 2016,] and the follow-up seems to show that it hasn't." Tr. 414. The undersigned accepts Dr. DiTommasso's opinion on cause-and-effect and determines as a matter of ultimate fact that neither of the subject children suffered a "mental injury" as defined in section 39.01(42), Florida Statutes, as a result of the incident in question.4/ Ultimate Factual Determinations The undersigned determines that LMCA's employee, Ms. Quintero, while caring for children at the School on August 25, 2016, did not commit an act or omission that meets the definition of child abuse or neglect provided in chapter 39.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order exonerating Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti, from the accusation of Child Abuse or Neglect as charged in the Administrative Complaint. DONE AND ENTERED this 4th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 4th day of April, 2017.
The Issue The issue is whether Respondent violated Sections 943.13(7), 943.1395(6) and (7), Florida Statutes (2003),1 and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Respondent was certified by the Commission in October 2002. His certification number is 204780. Respondent worked as a patrol officer for the Cape Coral Police Department from October 2002 through September 2003. Respondent was not working as a law enforcement officer at the time of the incident giving rise to this proceeding. He was working in a sales job. Respondent is a large, muscular man. He is approximately six-feet, four inches tall and between 240 and 245 pounds. He was 33 years old at the time of the final hearing. In June 2004, Respondent was living in Tampa with his then fiancée, Leah Bryant. Ms. Bryant’s four-year-old daughter, C.P., was living with them as well. Ms. Bryant was approximately three months pregnant with Respondent’s child at the time. On Saturday, June 12, 2004, Ms. Bryant went to work early in the morning and left C.P. at home with Respondent. C.P. was asleep when Ms. Bryant left. Around noon that day, Respondent was to drop off C.P. with Ms. Bryant’s parents, Michael and Sherry Frazier, in Bradenton, which is approximately half-way between Tampa and the Fraziers’ home in Ft. Myers Beach. C.P. was going to spend several days with the Fraziers. C.P.'s father, who also lived in the Ft. Myers area, was going to pick up C.P. from the Fraziers and keep her for a week with him. After Ms. Bryant left for work, Respondent got up, showered and got dressed. Then, he woke C.P. up, made her breakfast, packed her a bag of clothes for the trip, and ran her a bath. Respondent was sitting on the edge of the tub with his feet in the water while he bathed C.P. He was fully clothed, except for his socks. As Respondent was trying to get C.P. to rinse her hair with a cup of water, she shook the cup at Respondent causing the water to splash out of the cup and soak his shirt. This angered Respondent, and he pulled C.P. over his knee and “gave her a swat” on her buttocks. Respondent only spanked C.P. one time with an open hand. He testified that he did not think that he spanked her that hard, but the force of the spank was significant enough to leave red marks and bruises that, as discussed below, were clearly visible that night. C.P. cried after the spanking, but according to Respondent, she quickly stopped crying and started laughing after he started making “goofy noises.” Respondent then finished bathing C.P. without further incident. Respondent got C.P. out of the bath and helped her get dressed. Respondent then put C.P. into his car and they drove to Bradenton to meet the Fraziers. Respondent and the Fraziers met briefly at a McDonalds in Bradenton. C.P. left with the Fraziers and Respondent drove back to Tampa. After picking up C.P., the Fraziers drove back to their home in Ft. Myers Beach. On the way, they drove by a number of houses that were for sale in the Venice area because the Fraziers were considering moving to that area, which was closer to Tampa where Ms. Bryant, Respondent, and C.P. were living. The Fraziers did not get back to their home in Ft. Myers Beach until 6:30 or 7:00 p.m., which means that C.P. was in a car seat for approximately eight hours, including the time that she was in Respondent’s car from Tampa to Bradenton. The length of time that C.P. was in the car seat may have exacerbated the red marks on C.P.'s buttocks that were left by the spanking administered by Respondent. Shortly after getting to the Fraziers’ house, C.P. was in the bathroom with Lauren, her 13-year-old aunt and Ms. Bryant’s half-sister. Lauren noticed that C.P.’s buttocks had a number of red marks and bruises. Lauren immediately told her mother, Mrs. Frazier. Mrs. Frazier asked C.P. what had happened, and C.P. told her that “Nicky [Respondent] spanked me.” C.P. did not mention any sexual contact by Respondent. Mrs. Frazier immediately tried to call Ms. Bryant, but was unable to get in touch with her until approximately 10:00 p.m. that night. Mrs. Frazier took photographs of the marks on C.P.’s buttocks at approximately 8:00 p.m. The photographs, Exhibit P- D, are not very good quality, but they do show reddish marks all across C.P.’s buttocks. The photographs also show vertical marks along the inside of the cheeks of the buttocks, which look more like a rash than bruises. Mrs. Frazier told Ms. Bryant about the marks on C.P.’s buttocks and told her that she needed to come see them for herself. Ms. Bryant did so. Ms. Bryant arrived in Ft. Myers Beach after 1:00 a.m. on Sunday, June 13, 2004. C.P. was sleeping, but Ms. Bryant woke her up to see the marks on her buttocks and ask her what had happened. C.P. told Ms. Bryant the same story that she told Mrs. Frazier, i.e., that Respondent spanked her. C.P. did not mention any sexual contact by Respondent. Ms. Bryant testified that she spoke again with C.P. about the incident later on Sunday, and that all C.P. told her was that Respondent spanked her. Ms. Bryant further testified that when she left the Fraziers for Tampa on Monday, June 14, 2004, C.P. had not said anything about sexual contact by Respondent to her or anyone else. Mr. and Mrs. Frazier and Lauren all testified in their depositions that on Sunday afternoon, while Ms. Bryant was still at the Fraziers’ home, C.P. alleged that Respondent put "his pee-pee in her butt.” Ms. Bryant’s testimony on this issue is accepted over that of the Fraziers. Indeed, the more persuasive evidence establishes that Ms. Bryant would not have left C.P. and returned to Tampa on Monday had she known of the allegations of sexual abuse. Ms. Bryant's testimony on this issue is consistent with the level of concern that she exhibited for C.P. when she drove from Tampa to Ft. Myers Beach late on Saturday night after learning of the marks on C.P.’s buttocks. Ms. Bryant testified that she first learned of the allegations of sexual abuse when she received a call from Mrs. Frazier on Thursday, June 17, 2004. On that same day, C.P. was picked up from the Fraziers by her father, Steven Parker. C.P. told Mr. Parker the same story that she told the Fraziers, that Respondent spanked her and "put his pee-pee in her butt.” Later that evening, Mr. Parker’s then-fiancée (and current wife), Corin Hill-Parker, talked to C.P. about the incident. Mrs. Parker testified that at her request, C.P. drew a picture that depicted Respondent’s penis touching her butt. That drawing was received into evidence as Exhibit P-E. Ms. Bryant testified that she did not believe that C.P. drew the picture attributed to her by Mrs. Parker. Ms. Bryant’s testimony is corroborated by a comparison of Exhibit P- E to the other drawings done by C.P. (e.g., Exhibit R-3), which, in the undersigned’s view, show far less drawing skill than would be required to draw a penis and butt at the small scale they were drawn in Exhibit P-E. The following day, Friday, June 18, 2004, Mr. Parker and Mrs. Frazier took C.P. to the Estero Island Medical Center to be examined by a doctor. At this point, it had been six days since the incident. The report prepared by the doctor who examined C.P. on that date reflects that there were fading bruises on C.P.’s buttocks, but no injuries to her anus or vagina. The report states that C.P. told the doctor that “Nicky spanked [her]” and that “Nicky put his pee-pee in [her] bottom.” The doctor called the Lee County Sheriff’s Office (LCSO), as he was required to do by state law in cases of alleged child abuse. LCSO dispatched deputy to the doctor’s office. The deputy advised Mr. Parker that LCSO did not have jurisdiction because the alleged incident occurred in Hillsborough County. The deputy told Mr. Parker that he should take C.P. to a hospital in Tampa that evening -- Friday, June 18, 2004 -- for evaluation. Mr. Parker did not take C.P to Tampa until Monday, June 21, 2004. He did not take C.P. to a hospital for evaluation, but rather took her to the Tampa Police Department (TPD) to file a report. The report was taken by Sgt. Jonathan Gamson. Mr. Parker gave Sgt. Gamson the photographs of C.P.’s injuries taken by Mrs. Frazier, as well as the picture that C.P. allegedly drew of Respondent’s penis and her butt. Mr. Parker told C.P. to tell Sgt. Gamson what Respondent did to her, and she told him that Respondent spanked her and "put his pee-pee in her butt.” Sgt. Gamson also took a sworn statement from Mrs. Frazier, who had accompanied Mr. Parker and C.P. to Tampa. Sgt. Gamson turned the case over to TPD’s sex crime division, namely Detectives Josaphine Baxter and Sonja McCaughey. Detective Baxter referred C.P. to the Hillsborough County Child Protection Team for a physical evaluation. She also referred C.P. to the Children’s Justice Center for a “forensic interview.” The physical examination was conducted by nurse Tamika Harris on Thursday, June 24, 2004. C.P. told Ms. Harris that Respondent “put his pee-pee in her butt.” Ms. Harris did not observe any evidence of the alleged sexual abuse, such as injury to C.P.’s anus or vagina. On this point, Ms. Harris’ report states that “the physical findings from today’s examination neither supports nor refutes allegations of child sexual abuse.” The “forensic interview,” which also occurred on June 24, 2004, was conducted by Jennifer Miller. Ms. Miller has extensive training and experience in interviewing children, including children that are victims of abuse. The interview was videotaped and was conducted by Ms. Miller according to a protocol designed to ensure the reliability of the child’s statements For example, the protocol included asking open-ended, non-leading questions. Respondent did not take issue with the methodology used by Ms. Miller. During the interview C.P. told Ms. Miller that Respondent “put his pee-pee in her butt” while they were both naked in the bath together. She also told Ms. Miller that Respondent spanked her while she was in the bath. C.P. described the spanking and the alleged sexual abuse in the same manner, i.e., “like a stinky fish.” As detailed in the Order on Motion to Admit Statement of Child Victim entered on this date, C.P.’s videotaped statements are not found to be sufficiently reliable to satisfy the requirements of Section 90.803(23), Florida Statutes (2006). The statements are, therefore, hearsay. Detective Baxter had Respondent arrested on the evening of June 24, 2004, for child abuse and sexual abuse notwithstanding Ms. Harris’ report that her physical examination of C.P. did not support the allegation of sexual abuse. Her decision to have Respondent arrested was based upon C.P.’s statements to Sgt. Gamson, Ms. Harris, and Ms. Miller about the alleged abuse, Mrs. Frazier’s sworn statement, the drawing allegedly made by C.P., and the photographs taken by Mrs. Frazier on the night of the incident showing marks on C.P.’s buttocks. Respondent waived his Miranda rights and consented to be interviewed by Detective Baxter on two occasions. During the interviews, Respondent admitted that he spanked C.P. in the bath, but denied that he “put his pee-pee in her butt” or otherwise sexually molested her. He denied that he was naked while he was bathing C.P. The story that he gave during the interviews was consistent with his testimony at the final hearing. At one point between the interviews, Respondent stated to Detective McCaughey, “oh, it happened alright,” or words to that effect, in response to her statement that he should step up and take responsibility for his actions if he did what C.P. had alleged. Respondent credibly testified at the final hearing that he did not recall making that statement, and that even if he did, the statement must have been taken out of context because he would not admit to something he did not do. Respondent’s testimony on this point is consistent with his repeated denials during the interviews with Detective Baxter. Respondent was not prosecuted for the crimes for which he was arrested. He was never charged with sexual battery, and the child abuse charge was “nol prossed.” Respondent and Ms. Bryant are no longer together. They split up shortly after the incident, and she recently married someone else. Ms. Bryant now lives in Delray Beach. She has primary custody of C.P. and her and Respondent’s son, J.W., who was born in November 2004. After this incident, the Parkers filed several abuse reports against Respondent and Ms. Bryant relating to C.P. The reports were investigated by the Department of Children and Family Services and found to be without merit. There is a custody dispute pending between Mr. Parker and Ms. Bryant in which Mr. Parking is seeking custody of C.P. as a result of the incident giving rise to this case. That action, which was initiated after the incident, has not been actively pursued by Mr. Parker. Neither he nor Ms. Bryant was sure of the status of the case. Respondent sees his son regularly, and he has a good relationship with Ms. Bryant. Respondent has had no contact whatsoever with C.P. since the incident. Ms. Bryant testified that C.P. rarely mentions the incident. Mrs. Frazier and Mr. Parker testified that C.P. has stated that she is afraid of Respondent and that she remembers that he hurt her, which is consistent with the parties’ stipulation that C.P.’s participation at the final hearing may cause her severe emotional or mental harm.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd of January, 2007.
