The Issue The issue for consideration in this case is whether Respondent's certification as a corrections officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Respondent was certified as a corrections officer under Certificate No. 502-5580. The Criminal Justice Standards and Training Commission is the agency in this state responsible for the certification and regulation of the conduct corrections and law enforcement officers in Florida. On June 24, 1992, at approximately 11:45 PM, Officer Bryant K. Doyle, a four and a half year veteran of the Orlando Police Department, came across Respondent sitting in his car in a warehouse district near the 400 block of West Grant Street in Orlando. He called for backup by another unit, but before that unit arrived, the Respondent's vehicle, in which Respondent was accompanied a female, came toward him. Doyle stopped and approached the vehicle and at that time recognized Respondent from a prior contact which had occurred several months earlier. At that time, Doyle had come across Respondent in a car late at night in the same general area, again accompanied by a female. At that time, Respondent claimed he was a janitor but also showed Doyle a corrections officer certification card. On the second occasion, because Respondent had no identification with him, Doyle ran a routine identification check and found no prior arrest record. Though he did not know the person with Respondent, he claims Respondent implied she was a prostitute. She has an arrest record in Orange County, Florida but no evidence was produced as to what the arrests were for. Doyle asked the woman to step out of the car and, taking her behind the car, questioned her. Doyle claims she indicated Respondent had picked her up and had paid her $10.00 to fondle herself. She identified herself as Ms. McKie, who resided on Michael Avenue in Orlando. Doyle contends the interview of Ms. McKie lasted for four or five minutes. Officer Doyle then called in the information he had received from Ms. McKie and placed Respondent under arrest for solicitation of prostitution. On each occasion, at the scene, according to Doyle, Respondent cried and said he was sorry, but at no time did he deny her version of the story. There is no evidence, however, that he was made aware of it. Petitioner was unable to present the testimony of Ms. McKie. A subpoena issued to procure her presence at the hearing could not be served on her because the address given for her turned out to be a vacant lot. Ms. McKie had not been deposed previously, and, therefore, her testimony was not available. Respondent, testifying in his own behalf, indicated on the first incident described by Doyle, he had been visiting his brother, who resides in a Department of Health and Rehabilitative Services sponsored group home for the mentally disabled, the Golden Age Retirement Home, in the general area near where he was stopped by Doyle. Respondent is his brother's guardian, and on the night of that first alleged incident, had been visiting him somewhat late in the evening. During that visit, his brother introduced him to his girlfriend, whom he identified as Ms. McKay, and asked Respondent to take her to the store to pick up some items for him. After leaving the local convenience store where she purchased some snack items, on the way back she got sick and Respondent pulled over to the side of the road to allow her to relieve herself. While he was sitting there, with the auto engine running, Doyle arrived and directed him to get out of the car. When he complied, Doyle questioned him and in response, Respondent indicated he was a janitor and a corrections officer. At this time, he claims, Doyle accused him of prostitution, though Respondent denied it. Though he did not arrest Respondent, Doyle allegedly told him at that time to stay out of the area in the future even though Respondent claimed to have a lot of relatives living there. Throughout this interview, Respondent claims, Doyle was hostile and threatening. On June 24, 1992, Respondent, who was working the 6:30 AM to 2:30 PM shift, again visited his brother late in the evening. His visit was late because, after getting off work, he had to have some car repair work done and then took his wife to dinner. By the time they got back and he was ready to go, it was after 10:00 PM. However, because, he had to get his brother to sign some papers for the Social Security Administration, he decided to go even though it was late, and since his wife did not care to accompany him, he went by himself. On the way there, he saw a female walking on the street whom he recognized as a woman named Sally (McKie). He had known her for several years as a friend of his sister, but no idea she had an arrest record as a prostitute. Ms. McKie apparently walked out in front of his car and he stopped. He told her he was going to visit his brother, but if her destination was anywhere near his, he would give her a ride. She accepted. On the way, Ms. McKie indicated she was having some problems and began to get upset. She directed him into the warehouse area as a shortcut, but, for some reason, he claimed instinct, Respondent decided not to take it, turned around, and went back the way he had come. As he did so, however, he met Officer Doyle who stopped him and asked him for his driver's license which he did not have with him. According to Respondent, Doyle had Ms. McKie get out of the car and go with him to the rear where, for a period which Respondent estimates as approximately thirty minutes he allegedly threatened her with arrest if she did not admit she was engaged in prostitution at Respondent's solicitation. Respondent admits he did not hear the entire conversation and did not observe Doyle in his relationship with Ms. McKie, but he recalls the nature of the conversation. After speaking with McKie, Doyle came back to Respondent, had him get out of the car, and arrested him. Respondent was not prosecuted on the charge for which he was arrested. A Nol Prosequi Order dated October 13, 1992 so indicates. Even though Respondent notified his agency of his arrest, no action was taken against him by his supervisors. His appraisal report, dated June, 1993, for the preceding year which included the time of the incident in question reflects he exceeded standards, receiving 38 out of a possible 44 rating points. In that report he is described as an individual who can be depended upon to get the job done; who takes the initiative to insure those working for him have the requisite tools to do their job; accepts additional duties and puts every effort into accomplishing a task; works well with others; and can be depended upon to be there when needed. His three prior performance appraisal records, covering the period from January, 1989 through January, 1992, also reflect ratings of either "exceeds standards" or "outstanding." Respondent's supervisor, Sergeant Lacienski, and a fellow corrections officer and sometime subordinate, Officer Charette, both indicate Respondent has a good record and reputation within the corrections community for truth and veracity. According to Lacienski, even though Respondent's arrest was known within the correctional community, no one indicated any reluctance to work with him for that reason. This opinion is shared by Officer Charette, who asserts that Respondent's arrest for this incident had no effect on his work, and his effectiveness has not been diminished. Respondent has worked with the Orange County Department of Corrections for more than eleven years, achieving the rank of corporal. While serving as a corrections officer over that period, he has, at various times, held various part time jobs such as security officer, psychic technician, nurse's aide, and, for a period, janitor with Duncan Janitorial Service. He has never received any type of disciplinary action during his corrections career.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against the Respondent, John H. Girtman. RECOMMENDED this 13th day of December, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 13th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3299 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 15. Accepted and incorporated herein. Rejected as hearsay evidence not properly corroborated by other admissible evidence of record. & 18. Accepted and incorporated herein. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. - 6. Accepted. 7. - 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted. 18. & 19. Accepted. Accepted. & 22. Accepted. COPIES FURNISHED: Steven O. Brady, Esquire Florida Department of Law Enforcement 400 West Robinson Street, N-209 Orlando, Florida 32801 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida 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 James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?
Findings Of Fact Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation. Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960. Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960. Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison. During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools. On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison: I am an equipment operator I. The duties of this job consist of: 90% A. Drive Dump truck. 5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck. On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison. Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew. In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison: Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons; Carrying weapons issued by the prison; Maintaining the safety of prisoners in and outside the prison; Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon. Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison. During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department. There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck. Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison. From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System. In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison. While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners. While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners. During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison. In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida. In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida. Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison. Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections. Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972. Mr. Shepherd remained with the Department of Corrections until his retirement. Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System. On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976. By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied. The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED. DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 & 4. 2 5. 3 8 & 9. 4 10. 5 15. 6 11. 7 12. 8 15. 9 16 & 17. 10 19. See also 1-18. 11 20 & 21. 12 22 & 24. 13 Hereby accepted. 14 26. 15 Not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987. 2-3 2 & 4. 4 1. 5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3. 6-7 Irrelevant to this proceeding. 8 6. 9 5. 10 Not supported by the weight of the evidence. See 17. 11 9. 12 10. 13-14 8. 15 14. 16 Hereby accepted. 17 13. 18-21 Hereby accepted. 22 13. 23-25 Hereby accepted. 26-28 Taken into account in the weight given to the evidence. 29 8. 30 5. 31 8. 32 9. 33 8. 34 17 & 18. 35 8. 36 8 & 9. 37 28. 38 Hearsay. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Frieder Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666 406 North Wild Olive Avenue Daytona Beach, Florida 32018 =================================================================
Findings Of Fact Respondent Anthony G. Benjamin was certified by Petitioner on May 25, 1990, and was issued certificate number 44-90-502-02. At the time of the incident which is the subject of this proceeding, Respondent was a certified correctional officer employed by Glades Correctional Institution. On July 1, 1990, Officer Amadeo Bianchi and Officer Keith Golden were working as patrol officers with the South Bay Police Department in Palm Beach County. They received a call regarding a prowler at 188 Harrell Drive. They responded to that call in a marked police car, and both officers were wearing their police uniforms. Officers Bianchi and Golden arrived at approximately 3:52 a.m. and saw Respondent outside the apartment at that address. Both officers knew Respondent. They also knew that he lived in the apartment at that address and that he was employed as a correctional officer at Glades Correctional Institution. The officers proceeded to the door of the apartment and knocked. Keisha Benjamin, Respondent's wife, opened the door. Respondent walked through the open door past the police officers and his wife, heading straight for the bedroom door located to the right of the door where the police officers were standing. As Respondent proceeded toward the bedroom door, his wife was still standing at the apartment door with the police officers, explaining that she did not want Respondent there, that they had been having problems, and that he had moved out approximately a week earlier. Officer Golden watched Respondent reach the bedroom door, discover that the closed door was locked, and then kick the door open. After Respondent entered the bedroom, Officer Golden could hear the sounds of people fighting. Both police officers headed toward the bedroom door. When the two officers reached the bedroom door, they could see Respondent and another man fighting on top of the bed. The two officers entered the bedroom, each grabbing one of the fighting men from behind in order to break up the fight. Officer Bianchi grabbed Respondent. It was later determined that the individual Officer Golden grabbed was a man named Paul King, Respondent's wife's former boyfriend. Officer Golden pulled Paul King away from the fight and out into the living room area of the apartment. Golden instructed him to calm down, to stay there, and to not move. King cooperated with Officer Golden and did as he was instructed. As Officer Golden turned to walk toward the bedroom, he saw Officer Bianchi and Respondent coming out of the bedroom. They were still struggling, and Officer Bianchi was attempting to restrain Respondent from behind. At this point, Respondent and King were no more than 10-15 feet apart. Officer Bianchi turned Respondent, who could then see King on the other side of the living room area. Respondent was still enraged at King. Respondent, with Officer Bianchi trying to restrain him from behind, started toward Officer Golden, which was in the same direction as where Paul King was located. At the same time, Officer Golden started going toward Respondent. As Officer Golden met Respondent and Officer Bianchi half way across the room, Officer Golden bent forward to reach down and sweep Respondent's legs out from under him. As Officer Golden bent forward, Respondent struck him in the right eye with his closed fist, causing a small gash no more than 1/2" long under Golden's eye, which required no stitches. Officer Golden stood up, shook his head, bent forward again, and struck Respondent on the back of his legs causing Respondent to lose his balance. Respondent kept struggling with the two police officers until they handcuffed him. Officer Golden handcuffed Respondent by placing Respondent's hands behind his back. Once Officer Golden handcuffed Respondent, Officer Bianchi told Golden that Golden was bleeding and then punched Respondent in the face several times for injuring Officer Golden. Respondent was then placed under arrest. Court documents admitted in evidence indicate that Respondent was charged with battery on a police officer (Count 1) and resisting arrest with violence (Count 2). On February 21, 1991, he was found guilty of Count 1 although adjudication was withheld, was found not guilty of Count 2, and was placed on probation for 18 months. On July 17, 1991, an Order was entered as a result of a Motion for Clarification of Sentence filed by Respondent. That Order provides that the record regarding Respondent's criminal charges was amended to reflect that Respondent was guilty of battery, that adjudication was withheld, and that he was placed on probation for a period of one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent's certification as a correctional officer for a period of 60 days. DONE and ENTERED this 22nd day of March, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 22nd day of March, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-3336 Petitioner's proposed findings of fact numbered 1-3, 5-11, 13-24, 28- 31, 33, and 34 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4, 12, 25, and 26 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 27 and 32 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Dawn Pompey Whitehurst Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mark K. Koenig, Esquire Suite 300 Pavilion 515 North Flagler Drive West Palm Beach, Florida 33401 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards for certified law enforcement and correctional officers in the State of Florida. The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on December 2, 1980, and was issued certificate No. 15-84-599-01. Correctional Officer Teresa Allen worked at Lake Correctional Institute as a guard and at times pertinent hereto was working as a perimeter guard stationed in a pickup truck operating around the periphery of the prison. In the early morning hours of March 18, 1985, Ms. Allen arrived at her duty station in the truck on the perimeter of the fenced confinement area. The Respondent had been witness Allen's counterpart, stationed in that same pickup truck at the same point on the 4:00 p.m. to 12:00 midnight shift immediately prior to Ms. Allen's shift. When Ms. Allen got into the pickup truck, she observed and retrieved from the floor of the pickup truck, a scrap of aluminum foil, a paper towel and a plastic bag. The paper towel appeared to have been wadded up or torn up but had writing in ink on it. It appeared to her to be the Respondent Margaret Seale's handwriting, inasmuch as she was experienced in observing the Respondent's handwriting. She took the handwritten note or letter on the paper towel to her superiors, Lts. Flowers and Branch. Upon receipt of that letter, Lts. Flowers and Branch reconstructed it with cellophane tape. It ultimately was admitted into evidence as Petitioner's Exhibit 1. The letter indicates that the Respondent intended sending the addressee, someone she called "Baby" a "50-cent piece". She thereafter indicated she could not resist "taking a pinch." After the addressee of the letter was to receive the intended "50-cent piece" the Respondent directed the recipient to destroy all foil and plastic immediately thereafter. The Respondent then directed the recipient of the letter as to how to communicate with her, and urged the recipient not to go anywhere, but to "make some money" with her. Mr. Michael Lanfersiek is a special agent of the Florida Department of Law Enforcement. He is trained in narcotics investigation related to smuggling and trafficking in narcotics, controlled substances and related organized racketeering. He was established to be an expert in narcotics investigation, and in interpreting the jargon used in the "drug trade." It was thus established that a "50-cent piece" refers to $50 worth of drugs or slightly under one gram of heroin or cocaine, for example. The reference in the letter to the directed destruction of the foil and plastic refers to the aluminum foil and plastic bag wrapping of the cocaine' or heroin which is trafficked in a powder form and requires such a wrapping. Thus, the witness established that the letter showed that the writer of it had trafficked or transmitted a controlled substance to the recipient of the letter, and was telling him to destroy the wrapping material after receipt of the drug. Inmate James Bryant had been suspected of trafficking in drugs inside the Lake Correctional Institute. The Respondent was not on any inmate's "visitors approved list," but recently had filed a request form asking to visit the suspected inmate, James Bryant. That inmate was later transferred to Marion Correctional Institute some two months after the Respondent resigned. Mr. Michael Page is the Inspector of Prisons for the Marion County area. Mr. Page is charged with investigating both prison staff and inmates and was familiar with the Respondent's handwriting. It appeared that the handwritten note, Petitioner's Exhibit 1, was written in the Respondent's handwriting and he had this confirmed to his satisfaction by a handwriting expert employed by the Florida Department of Law Enforcement. The Respondent refused to confer with Mr. Page without the presence of her attorney. Some two days after he initially requested an interview with her she resigned. There is no question that the Respondent authored the subject letter which reveals clearly that she proposed and intended to transmit illicit drugs to another person, established to be an inmate in the Lake Correctional Institution, for the purpose of that person marketing the drugs to others in return for money, of which the Respondent would receive a portion. Indeed, in the prehearing stipulation admitted into evidence on the day of hearing, and signed by the Respondent as well as Petitioner's counsel, it is admitted by Respondent that she personally wrote the note identified as Petitioner's Exhibit 1, and that she wrote the note while she was employed as a correctional officer at the Lake Correctional Institution. Thus, in view of the stipulation, which is accepted, and the unrefuted testimony of the witnesses who were familiar with the Respondent's duty station and hours of employment, her past history of attempting to contact and visit an inmate already suspected of drug trafficking, and her handwriting, it is patently apparent that the Respondent did indeed possess and intend to deliver to another, for resale, illicit controlled substances. No contrary testimony or evidence having been offered, the charges have thus been established.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, the pleadings and arguments of counsel, it is, therefore RECOMMENDED that the certification of Margaret C. Seales as a correctional officer be REVOKED. DONE and ENTERED this 19th day of May, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Margaret C. Seales 300 Dorsett Avenue Lake Wales, Florida 33853 Daryl G. McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material to this administrative complaint, Respondent was employed as a correctional officer at the Putnam Correctional Institution (Putnam). He was certified August 14, 1987 by certificate #14-87-502-13. He is 26 years old. In September 1987, Florida Department of Law Enforcement (FDLE) Special Agent Jimmie Collins was tipped off by Michael Adkins, an inmate at Putnam, that a correctional officer was interested in selling one or two kilograms of cocaine. Collins approached Adkins' wife, Phyllis, who agreed to assist Collins in a criminal investigation. At Collins' instructions, Phyllis Adkins set up a meeting with Respondent, telling him she was a mediator or broker for a cocaine buyer named "Joe." Mrs. Adkins wore an electronic transmitter to a meeting with Respondent on September 2, 1987 and her conversation was monitored and taped by Agent Collins. At the September 2, 1987 meeting, which took place in the open at a restaurant parking lot, Respondent and Mrs. Adkins discussed in the most general terms an exchange of "coke" for money. "Samples" were discussed. No one made any commitment to anyone with regard to samples or a sale. The Respondent's behavior was described by both participants as "freaked" or frightened. Later, Mrs. Adkins set up another "meet" with Respondent for September 23, 1987 under similar conditions. At that time, she had with her another FDLE agent, Joe Nickmier, who posed as the imaginary narcotics dealer named "Joe." Respondent brought with him another person, Chris Sanford. Agent Collins was surprised that Respondent brought someone with him because such an exposure of a proposed drug deal to several persons was contrary to his experience with the secretive, suspicious, and paranoid behavior of "real dopers." As a result, Agent Collins felt that Respondent was involved in something he did not know about. Collins was further surprised when the masquerading "Joe" concurred with Respondent's ordering Chris Sanford to stand back away from their conversation, since Sanford's involvement had the potential of raising the circumstances to a standard sufficient for FDLE to make a charge against both Respondent and Sanford for "conspiracy" in use, trafficking, or selling of a controlled substance. During the conversation involving Respondent, Phyllis Adkins, and "Joe," on September 23, 1987, which conversation was also monitored and taped by Agent Collins, there is a suggestion that Respondent would exchange 17-18 or 22 ounces of some kind of drug for money, but the language employed by all concerned is vague and unconnected. Respondent avoided any commitment to the others, including giving them his phone number. At the conclusion of this meeting, Agent Collins had formed the opinion that Respondent did not fit the category of "a real doper" but was just an individual out to make some money. Collins felt that he had a reasonable expectation that the Respondent would sell cocaine if he could get it but that Respondent could not get cocaine from the Putnam County Sheriff's Office or the Daytona Police Department. It is not clear where Agent Collins got the idea that Respondent had offered to obtain any controlled substance from the respective evidence rooms. This concept was not volunteered or admitted by Respondent in either of the taped meetings with Phyllis Adkins and/or "Joe." Phyllis Adkins and "Joe" suggested to Respondent several times on September 23, 1987 that Respondent's contact must be in law enforcement in Daytona, but no "evidence room" was ever mentioned. It may be that Agent Collins relied on out-of-court (hearsay) information from Michael or Phyllis Adkins, but his reliance on such hearsay statements, in the absence of some direct supporting evidence, does not support a finding that Respondent ever made an offer to get contraband drugs from any sealed evidence room. In a subsequent March 1988 interview, Respondent admitted to prison inspectors and to Agent Collins that he had, indeed, made both parking lot contacts with Phyllis Adkins and that he knew he was operating outside the scope of his employment duties as a correctional officer when he did so, but that he was just conducting his own investigation into drug dealing to "set up" inmate Michael Adkins for FDLE. Respondent's stated purposes were to further his career and to impress his father, a Florida highway patrolman. Respondent admitted that he knew the prison investigator at Putnam but that he did not report his activities to the prison investigator. Special Agent Jimmie Collins consulted FDLE legal personnel and determined not to prosecute the Respondent criminally because there was insufficient evidence of either conspiracy or of a substantive statutory violation. Two times in January 1986, far previous to any of the events giving rise to the current charges, Respondent had approached another FDLE Special Agent, Paul Fuentez, giving him the names and addresses of several known drug dealers and requesting the opportunity to go undercover with Fuentez to acquire evidence against them. Fuentez met twice with the Respondent, face to face, and at that time, Respondent admitted to using drugs with such persons. Fuentez instructed Respondent not to "do" drugs with suspects and not to proceed with any independent investigation on his own. Respondent told Fuentez at that time that he had been awake all night. Fuentez felt that Respondent was "hyper," and might still be on drugs, and therefore Fuentez told Respondent that they could not work together as long as Fuentez had the opinion that the Respondent was on drugs. On September 23, 1987, the day of the Respondent's second meeting with Mrs. Adkins and his only meeting with "Joe," Respondent phoned Fuentez twice. The first time, the Respondent said he had been talking to a prisoner named Michael Adkins who was dealing drugs with a Puerto Rican named "Joe." The Respondent specifically asked Agent Fuentez if Adkins had been dealing with "Joe" when Adkins had been arrested for the crime for which Adkins was currently incarcerated. Fuentez' testimony indicated that Respondent was clearly asking about the past status, not the present status, of the people named. At the time of this first call, Fuentez knew about Collins' investigation at Putnam but did not know Respondent had been specifically targeted. Fuentez formed the opinion that Respondent was trying to find out about FDLE investigations. He told Respondent he did not have time to look up information about the people Respondent had named and ended the phone call. Later the same day, Respondent called back to Fuentez and told him to forget the whole thing. Since the "meet" of September 23 occurred after dark and Respondent's phone calls to Fuentez seem to have occurred during business hours, the undersigned infers that both Respondent's phone calls to Fuentez preceded his "meet" with Phyllis Adkins and "Joe" on September 23, 1987. Respondent also had a conversation with Robin Edwards, a local police officer. Respondent related to him that he had been approached by a Putnam inmate, Michael Adkins, to buy or sell drugs. Mr. Edwards advised Respondent to talk to his trooper father or his superiors. At formal hearing, Edwards could not date this conversation closer than that it could have been in September 1987, but even so, it appears not to be an afterthought devised by Respondent only due to the March 1988 confrontation of Respondent by investigators. Lenard Ball is a Correctional Officer Inspector II. Upon his testimony, it is accepted that a standard of correctional officer behavior prohibits them from operating outside a correctional institution. Unless they are acting as prisoner escorts, correctional officers' authority ends at the boundary of their respective institutions. Upon Officer Ball's testimony, it is also accepted that each correctional institution may institute a policy permitting criminal investigations within that institution to be pursued by only one correctional officer, and that at Putnam, all officers are required to report all such conversations as Respondent was having with Michael Adkins to one of two superiors. In Ball's opinion, Respondent's actions were clearly prohibited by anti-fraternization rules and by rules prohibiting Respondent from placing himself and others in danger. Respondent was never an institutional investigator. In fact, he had only been certified as a correctional officer for approximately one month when the material events occurred. At formal hearing, Respondent testified credibly that the entire episode was only intended by him to achieve more in his position, that he had no connection with anyone in the local police department or the sheriff's office who could give him access to drugs, and that he had no other access to those evidence rooms. Respondent had consistently denied any mention of evidence rooms since the March 1988 investigation. Petitioner did not establish that Respondent had ever had any access to any controlled substances through any evidence rooms or otherwise. (See Finding of Fact 5) Further, Respondent represented that his phone conversations with Agent Fuentez scared him, that he only attended the September 23, 1987 meeting with Phyllis Adkins and "Joe" because he had been threatened by Michael Adkins with being turned in to FDLE, and that he took Chris Sanford, a Fire Department employee, with him to the September 23, 1987 "meet" as a witness for his own protection. Chris Sanford did not testify. Michael Adkins did not testify. There is therefore no further support or dispute to Respondent's intent or motivation from original sources.
Recommendation Upon 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 Respondent guilty of bad moral character as defined in Rule 11B-27.001(4)(c) F.A.C., issuing a reprimand accordingly, and placing his certificate on probationary status for two full years, subject to specific terms and conditions for appropriate education, training and supervision to be imposed by the Commission in its expertise, and providing for revocation of his certificate in the event those conditions are not timely met. DONE and ENTERED this 2nd day of February, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2450 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Except where subordinate or unnecessary, PFOF 1-7, 10- 13, 16, 19-21 are accepted. PFOF 8-9 are accepted to the degree described in the RO. The PFOF contain argument and the quotation is only part of several pages and does not accurately reflect the exhibit or record as a whole. PFOF 14-15 and 17 are only part of several pages and do not accurately reflect the exhibit or record as a whole. PFOF 18 is rejected as unproved. Respondent's PFOF: None filed to date. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert S. Smith 2720 Edgemore Palatka, Florida 32077 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
