The Issue Whether Respondent used excessive or unnecessary force on Stephen Cody Kester on July 15, 2000, as set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Victor Bosch, is a certified Law Enforcement Officer in the State of Florida. He was issued Law Enforcement Certificate Number 170035 on February 26, 1997. He was also issued Auxiliary Law Enforcement Certificate Number 163915 on June 27, 1996, and Correctional Officer Certificate Number 160836 on March 27, 1996. On June 15, 2000, Respondent was employed by the Charlotte County Sheriff's Department as a Deputy First Class. On July 15, 2000, Stephen Cody Kester, a seventeen- year-old juvenile, was in attendance at a teen dance conducted by the Charlotte County Parks and Recreation Department at the Tringali Center located in Englewood, Charlotte County, Florida. During teen dances at the Tringali Center, it is common practice for teenagers to step outside of the center, with permission of the adult sponsors, to use wireless phones due to the volume of music, if they stand near the Deputy on security duty by the front door. Rules regulating the dances conducted at the Tringali Center are not written or posted in any manner, but left to the discretion of individual counselors. However, teenagers who leave the premises during a dance, without permission, are not permitted to return to the dance. Kester had asked and was given permission to go outside of the center to use his wireless telephone. Upon leaving the center, Kester informed Respondent that he had permission to use his wireless phone. Kester stepped several feet away from Respondent, and out from under the overhang at the Tringali Center, but within clear sight of Respondent. Respondent became upset that Kester moved away from him. He also refused to accept Kester's statement that he had permission to be outside in order to use his wireless phone and then return to the dance. When Kester tried to re-enter the center, Respondent placed Kester in an arm lock, told him he could not re-enter the premises, and forced him to leave the area. Kester was not a threat to Respondent, nor was he placed under arrest. As a result of the arm lock placed on Kester, he was taken to an emergency room by his mother and subsequently diagnosed with an acute strain, left shoulder. At the time of the incident in question, Kester suffered from a brain tumor that was life threatening, and any sudden movement or trauma to the head could have resulted in dire consequences. The Tringali Center had no hard and fast rules concerning leaving the building to use a wireless phone. As long as the individual stayed in the area of the overhang and the deputy outside was informed that permission had been granted, then it was acceptable for the teenager to return to the dance. The amount of force used by Respondent to restrain Kester was excessive and unnecessary. Respondent's explanation that the arm lock technique he used was acceptable practice in the law enforcement community and that the level of force used was not harmful to Kester is not credible, nor persuasive. Prior to this incident, Respondent was employed in law enforcement for seven years and had no prior disciplinary incidents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. Respondent's certification be suspended for six months and successful completion of such training or retraining deemed appropriate by the Commission. DONE AND ENTERED this 17th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of December, 2001. COPIES FURNISHED: Victor Bosch 3394 South Sumter Boulevard North Port, Florida 34287 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 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 Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent used excessive force to subdue a prisoner, and whether the Respondent made false official statements about the incident.
Findings Of Fact The Respondent, Tony V. Walker, was certified by the Criminal Justice Standards and Training Commission on July 7, 1989, and issued Corrections Certificate No. 05-89-502-01; and on October 9, 1990, was issued Law Enforcement Certificate No. 05-90-222-01. (See Petitioner's Exhibit 1.) At the time of the incident described in the Amended Administrative Complaint, the Respondent was working as a certified correctional officer at the Liberty Correctional Institution in Bristol, Florida. On or about November 12, 1990, the Respondent was working in the E and F dormitories of the Liberty Correctional Institution supervising inmates with Correctional Officer Wanda Terry/Rogers and Sgt. Smith. While Officer Terry/Rogers was on the phone with the medical department of the institution, the dining hall attempted to notify dormitories E and F to release their inmates for the noontime meal. When the dining hall was unable to contact dormitories E and F, dormitories G and H were called and told to release their inmates for the meal. When the inmates in dormitory E realized that dormitories E and F had been skipped in the feeding schedule, they became rowdy and belligerent. The inmates gathered around the dormitory control station cursing and complaining at Officers Terry/Rogers and Walker. Sgt. Smith was not present, having been requested by the lieutenant to assist him in the dining hall during the meal period. Officer Walker, the Respondent, attempted to calm the inmates by entering dormitory E and explaining the situation, emphasizing that the E and F inmates would be the next to go to lunch. This calmed some of the inmates, but Owen Dampier continued his verbal remonstrations about being skipped. After Walker returned into the dormitory's control room, Dampier approached the voice screen to the control room and became increasingly verbally abusive to both Walker and Terry/Rogers. His actions were causing the other inmates to again become rowdy and both Terry/Rogers and Walker felt that if Dampier's acting-out continued, it would foment an inmate disturbance. Walker had picked up an inmate's walking cane which was kept in the office for security reasons. Walker was preparing to issue the cane to the inmate to whom it belonged when Dampier screamed at Terry/Rogers and him. Walker slammed the cane against the plexiglass window and whistled at Dampier, who had turned and was walking towards the inmates clustered near the control room. Walker called Dampier back to the control room, and told Dampier that he was going to be placed in the laundry room in isolation. Terry/Rogers observed that Walker at this time was calm and was not upset by Dampier. Having told Dampier that he was going to be placed in isolation, Walker opened the door to the control room to let in Dampier. The control room door was hinged on the left side and opened into the control room. It was secured by a dead bolt lock located over the door handle on the right side of the door. As Dampier entered the room, Terry/Rogers left the desk and moved to the laundry room door to open it. Dampier stepped into the control room and stopped immediately inside the room. At this point, Dampier attempted to engage in a debate with Walker about the meal delay and refused to proceed into isolation. Dampier was facing Walker, and Walker, still holding onto the door, was standing partially behind the door, holding the door handle with his left hand. Walker released the door and it closed but was not locked. The statements of Walker, Terry/Roger and Dampier about what occurred next differ in their specifics. The following findings are based upon the testimony of Walker and Terry/Rogers and the written statement of Dampier which is corroborative of both of their statements. Dampier described his posture at this juncture as "being in Walker's face." Both Walker and Dampier were in close proximity with one another. Walker reached with his left hand to lock the door which had closed, but which had not been locked. As Walker started to reach for the door lock, Dampier perceived that he was grabbing for him and slapped Walker's hand away. Terry/Rogers, observing from across the room, saw Walker reaching for the door and assumed that he was reaching for Dampier who was standing in front of the door handle and lock. When Dampier slapped Walker's hand away, Walker felt threatened and pushed Dampier away from him with his right hand. Terry/Rogers, across the room, perceived Walker's action as an effort by Walker to grab Dampier. However, because of the location of the two men and the laundry room, it would have been extremely awkward for Walker to have grabbed at Dampier with his right hand in an effort to lead him to the laundry room which was to Walker's right and Dampier's left. Dampier's statement confirms that when Walker pushed him, Dampier pushed Walker back. Walker described Dampier's pushing him, and stated that, at this point, he struck Dampier on the chin with his closed right fist and then wrestled Dampier to the floor. Both the testimony of Terry/Rogers and the statement of Dampier confirm this. After both men fell to the floor, Terry/Rogers first locked the door to the control room, and then called the main control room for assistance. Two correctional officers supervising the yard immediately outside the dormitory responded in seconds. With their assistance, the tussle between Dampier and Walker was stopped. The Superintendent of Liberty Correctional Institution appointed an investigating officer, Inspector Stone, who interviewed Terry/Rogers, Walker and Dampier on the afternoon of November 12, 1992. Walker denied grabbing Dampier. Walker stated that he struck Dampier after Dampier pushed him. Dampier stated that Walker had grabbed him (page 4 of Dampier's statement), and also that Walker grabbed at him (page 6 of Dampier's statement). Walker admitted physical contact with Dampier and admitted striking Dampier; however, Walker stated consistently that he no recollection of grabbing Dampier by the arm. Both Walker and Dampier describe the same occurrences. Dampier's statement reports "he (Walker) grabbed at me (when) I was in his face." (Emphasis supplied.) "Then he told me to come. . . (page 6) "I pulled back like this, here, I was going to walk a little bit." (page 4, paragraph 5) "When I snatched my arm back, that's when he came up to me and pushed me." (page 4, paragraph 6) "I thought maybe he was going to swing, so I kinda like shoved him back, and he came up to be mad and he swung . . . he hit me." (page 4, paragraph 13) Walker states, "I asked him to step to me (inside the officer's station), and when he did he, uh, bowed up and he walked over to me and I opened up the door[.] I asked him to step on back to the laundry room[.] [W]hen he did, he slapped my hand back, and pushed me back and things went from there. . ." (page 3). "I hit the glass to get his attention[.] [T]hen I came down and I asked him to step inside the officer station[.] I told him to step on back to the laundry room[,] and that is when he slapped my hand and pushed me back, and started swinging[.]" Page 4. "I had my hand out to open the door, and as he stepped in[,] I let it,. . . the door[,] go back in behind me, . . . I took my hand [and] put it by my side like this, and he slapped my hand back, and pushed me back. . . I have [sic] not touched him then, until, up until then, 'til the actual squabble itself. . . . No, sir, I didn't grab him by the arm." (page 5 and 6) "He pushed me backwards, . . . finally I pushed him back and he reared back and I hit. It happened mighty fast." (Walker, page 6). In summary, both men testified to the same events, in the same order. Just after Dampier entered the room, Walker made some motion with his hand, and Dampier slapped it away. Walker pushed Dampier away from himself after Dampier slapped his hand, and a scuffle ensued in which Walker struck Dampier. What Terry/Rogers observed from across the room was not Walker grabbing Dampier with his right hand, but Walker pushing Dampier away. The slapping of Walker's left hand by Dampier with his right hand, which occurred first, was not observed by Terry/Rogers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the charges against the Respondent, Tony V. Walker, be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of February, 1993. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER The Respondent did not file proposed findings. The proposed findings filed by the Petitioner were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Recommended Order Paragraphs 1-9 Paragraphs 1-9 Paragraphs 10,11 Walker advised Dampier he was going to be isolated before letting Dampier into the Control Room, and it was only after Dampier entered the Control Room that they had an argument. Paragraph 12 The testimony that Walker grabbed Dampier is rejected as being contrary to that of Walker's testimony which is corroborated by Dampier's statement. Paragraphs 13-15 Paragraph 17,18 Paragraphs 16 See Comments to Paragraph 12, above. Paragraphs 17,18 Irrelevant. Paragraphs 19-21 Paragraphs 19 and 23. Paragraph 22 The testimony of Stone, as quoted in the proposed finding, makes it appear that Walker changed his story. This is incorrect. Walker never denied striking Dampier, although, he denied having grabbed Dampier by the arm at the commencement of the altercation. Paragraph 23 Irrelevant. COPIES FURNISHED: Dawn Pompey Whitehurst, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Tony V. Walker 7002 Lois Street, Apt. B Callaway, FL 32404 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
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 employer is guilty of an unlawful employment practice, to wit: failure to accommodate Petitioner's handicap and termination of Petitioner, on the basis of handicap discrimination.
Findings Of Fact Petitioner is an adult African-American male. After retiring from the United States Army with an excellent reputation, Petitioner was hired by Respondent Department of Corrections. When Respondent hired Petitioner it was aware he had a 10 percent physical impairment, as assigned by the Veterans' Administration (VA). Petitioner completed 512 hours of training and was certified as a Correctional Officer, pursuant to the Florida Statutes. At all times material, he was a "vested" State career service employee. Petitioner sustained an on-the-job injury on February 11, 2003, while employed by Respondent. Apparently, Petitioner was adequately performing his job duties up through the date of his injury. Respondent Employer provided workers' compensation and medical benefits as required by Chapter 440, Florida Statutes. These benefits were monitored by the State Risk Management Office within the Department of Insurance. The Employer instructed Petitioner not to return to work until he was medically released to return to work. Petitioner's injury was a torn medial meniscus (knee joint injury). He underwent collagen injections and lengthy physical therapy, but no surgery. His treating physician was Dr. Aguero. On July 21, 2003, Petitioner underwent a Functional Capacity Evaluation by a physical therapist. The report of this evaluation was typed up two days later and showed, in pertinent part, that: Mr. Brown demonstrated the capacity to sustain work tasks in the light strength category of physical demands. His . . . previous job was corrections officer. That job is estimated to be in the medium strength category. Known job duties of concern or particular relevance include: ability to move rapidly and to perform take- down and restraint procedures. Risk Management employees urged the treating physician to release Petitioner to return to work. On July 30, 2003, Dr. Aguero released Petitioner to return to work on light duty, with restrictions on standing, walking, and lifting. Presumably, Dr. Aguero believed Petitioner would be reassigned by the employer to appropriate light duty work until he reached maximum medical improvement from his knee injury. The Employer Department of Corrections, in fact, did assign Petitioner to "alternate duty" work when he returned to the correctional institution on or about July 30, 2003. Petitioner worked in the mail room for approximately three weeks thereafter. As of July 30, 2003, in addition to his 10 percent rating of permanent partial disability from the VA, Petitioner had gained a great deal of weight due to inactivity during the post-knee injury period. He also suffered from arthritis. On or about August 18, 2003, Dr. Aguero filled out a Workers' Compensation Maximum Medical Improvement (MMI) Form, designating that Petitioner had improved from his on-the-job injury as much as could be reasonably medically expected. As of that date, Dr. Aguero assigned him an additional two percent permanent partial disability rating, due to his on-the-job accident. The two percent rating carried continued work restrictions. Dr. Aguero provided the results of Petitioner's July 21, 2003, Functional Capacity Test score to the Employer (see Finding of Fact 6) attached to his MMI rating. Dr. Aguero's employment restrictions for Petitioner, post-MMI, as stated on the official MMI Form, say "See FCE," meaning that Dr. Aguero had adopted, as his restrictions on Petitioner, the functional abilities described in the July 21, 2003, Functional Capacity Evaluation Report. This meant that Petitioner was found by the physical therapist testing him to be unable to do these tasks on July 21, 2003, and the medical physician was saying for July 30, 2003, that Petitioner had achieved all the improvement he was going to achieve from the knee injury and he should not be required to do these activities on the job because he could not do them and trying to do them could be harmful to him. These restrictions included no extended periods of standing/walking, no balancing, and no significant lifting. Also, Petitioner was listed as being unable to lift 50 pounds, routinely. Essential Function A-4 of the Essential Functions of a Correctional Officer, which the Department of Corrections has adopted as its minimum standards for employment as a Correctional Officer, requires that a Correctional Officer be able to: Sit, walk, and stand for prolonged periods of time; stoop, squat, kneel, bend, run, and lift approximately 50 pounds on a routine basis. Within a day of receiving the MMI package, Petitioner's highest superior, the Warden, sent Petitioner home. Petitioner was subsequently provided a Predetermination Conference and a dismissal letter. Petitioner claimed to have begged to stay on in alternate duty positions, but neither he nor any of his local supervisors reported these requests for light duty or other accommodation of his permanent condition to the Employer's Americans With Disabilities Act Coordinator, Martie Taylor. It was not necessary under Chapter 760, Florida Statutes, for Petitioner to do more than ask his supervisors for an accommodation, but Ms. Taylor testified that even if Petitioner's supervisors had properly relayed his requests for accommodation to her, she knew of no way the Employer could have accommodated Petitioner's lifting restrictions. Petitioner related that supervisors made comments to him that they needed a fully functional "soldier in the field" and that his obesity and inability to run and subdue prisoners rendered him not fully functional as a correctional officer. Petitioner believes that his large size is an asset in commanding and subduing inmates but that Respondent is prejudiced against his size. Petitioner testified that he knew of insulin-dependent diabetics and of other obese correctional officers who did very well at regular employment with the Employer and that he knew of other correctional officers whom the Employer had permitted to stay employed at light duty longer than he had been allowed to stay on light duty. However, Petitioner had no knowledge of whether these employees had reached MMI or of which essential requirements of the job of Correctional Officer they were able, or unable, to perform while they were on light duty. In fact, the Department of Correction's Procedure 208.10, covering "Career service employee's right to alternate duty assignments," reads, in pertinent part: SPECIFIC PROCEDURES COORDINATION OF ALTERNATE DUTY: . . . * * * (c) The department does not have specific alternate duty positions. The employee will remain in her/his current position while performing alternate duties. * * * Certified Officers: Individuals employed in a certified officer's position must be prepared and able at all times to perform the essential functions of his/her position. If approved for alternate duty, an employee in a certified officer's position will be temporarily assigned to non-certified officer duties for the period of time during which the employee is determined by the Division of Risk Management to have a temporary partial disability. * * * (8) MAXIMUM MEDICAL IMPROVEMENT (c) When maximum medical improvement has been determined by the treating physical and information has been provided to the Division of Risk Management, the employee will be reassigned the duties and responsibilities of her/his regular position unless the employee cannot perform the essential functions of the position. In no way will the employee be allowed to continue to perform alternate duties once the maximum medical improvement has been determined by the Division of Risk Management. (Emphasis supplied) Petitioner pursued his employment rights before the Public Employees Relations Commission (PERC). PERC's Final Order (January 8, 2004) on this matter determined as a factual finding that Petitioner could not perform the essential duties of a correctional officer and accepted the hearing officer's findings of fact. Brown v. Dept. of Corrections, 19 FCSR 9 (2004). More specifically, the PERC hearing officer found that "Brown received maximum medical improvement on July 30, 2003, with a two percent impairment," and that "the doctor indicated on the evaluation that Brown has work restrictions and he cannot perform the standing and walking requirements of a correctional officer." At hearing, Brown indicated that he cannot perform the duties of a correctional officer . . . . He also stated that he cannot run . . . . In sum, the Agency demonstrated that it is undisputed that Brown cannot perform the essential duties of a correctional officer." Since there were no appeals, the findings of fact of the PERC hearing officer between the same two parties are res judicata; are presumed correct, and are binding herein as a matter of law. Some findings also constituted admissions of Petitioner. Loss of employment has been very hard on Petitioner and his family. On September 11, 2003, Petitioner applied for a disabled person license plate, reciting that he was so ambulatory disabled that he could not walk 200 feet without stopping to rest, and that he is severely limited in his walk due to an arthritic, neurological, or orthopedic condition. His treating physician signed this application, attesting to Petitioner's listed conditions. Petitioner's Answers to Respondent's Requests for Admission in the instant case concedes that he can perform jobs other than those of a correctional officer. Petitioner's testimony at hearing was to the effect that he still cannot perform all the duties of a correctional officer.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and the Charge of Discrimination herein, and awarding no attorney's fees or costs to Respondent. DONE AND ENTERED this 9th day of May, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 9th day of May, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Horace Brown, Jr. 2012 Bradley Avenue Valdosta, Georgia 31602 Mark Simpson, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
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 The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, 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 July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, 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, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, the following findings of fact are made: Respondent is now, and has been since March 26, 2007, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 264941. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the Everglades Correctional Institution (ECI). Tony Pesante is now, and was at all times material to the instant case, employed by the Department as a law enforcement inspector and assigned to ECI. Brian White is now, and was at all times material to the instant case, employed by the Department as a canine inspector and assigned to the Department's Office of the Inspector General. On August 8, 2007, his canine partner was Ziggy, a certified narcotics detection dog. On or about August 6, 2007, Inspector Pesante received a tip from an inmate that Respondent was going to be bringing narcotics to ECI on August 8, 2007. Inspector Pesante observed Respondent when she parked her car in the ECI staff parking lot on August 8, 2007, and exited the vehicle. The parking lot is located on the grounds of ECI. Inspector White and Ziggy were summoned to the parking lot. Ziggy alerted to the presence of narcotics in Respondent's vehicle. Inspectors Pesante and White then searched the vehicle (after they had Respondent unlock it). In the vehicle, they found a small amount of cannabis, a partially full bottle of Absolut Vodka,2 and various letters and other written materials, including correspondence from inmates. Following the search of the vehicle, Inspector Pesante instructed Respondent to "wait in the lobby [of the facility] while [he] was getting ready to interview her." Instead of waiting in the lobby, Respondent got into her vehicle and drove off. Her employment was subsequently terminated, and she never returned to the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of July, 2008.
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
