The Issue The issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a), and if so, what penalty should be imposed.
Findings Of Fact The Department?s Case Respondent is a certified corrections officer in the State of Florida, to whom Petitioner has issued certificate number 249713. On or about April 9, 2011, at approximately 2:00 a.m., Officer George Dodson of the Cottondale Police Department responded to a disturbance call at the Cottondale Villas at 3111 Willow Street in Cottondale, Florida. Officer Dodson found a group of people in the parking lot, including Respondent. There was a large amount of blood on the ground. Ms. Bradie had a cut on her hand that was wrapped in a cloth, and denied knowing how her hand was cut. Officer Dodson spoke to several people at the location, and the consensus was that Ms. Bradie had cut Mr. Marques White with a box cutter. None of the people with whom he spoke testified at hearing. No box cutters were found at the scene. Mr. White was not present at the scene. He returned at approximately 4:00 a.m., but was still bleeding and could not really speak. Officer Dodson did not take statements from anyone at the scene because, other than Ms. Bradie, all of them appeared to be intoxicated. He did recall Ms. Bradie saying she was struck in the face, but does not recall her face being swollen. The next day, Officer Dodson learned that Mr. White had returned to the hospital because of his injuries, which were serious. Pictures taken of Mr. White show a scar on his lip and arm, and a scar resulting from the performance of a tracheotomy. However, there is no evidence to indicate whether Mr. White had any of these scars prior to the incident, or that all of the injuries evidenced by the scars occurred as a result of Respondent?s actions. Officer Dodson was able to interview Mr. White on April 15, 2011, and a witness statement/affidavit was prepared on April 17, 2011. The statement of Mr. White is hearsay, and he did not testify. On April 15, 2011, Officer Johnson filed an affidavit/complaint and application for warrant against Ms. Bradie for aggravated battery. An information filed June 15, 2011, charged her with aggravated battery in violation of section 784.045(1)(a)1., Florida Statutes, a second-degree felony. A warrant for Ms. Bradie?s arrest was issued that same day. Ms. Bradie resigned her position at the Jackson Correctional Institution on June 27, 2011. Ms. Bradie entered a pretrial intervention program, and the charges against her were nolle prossed on February 25, 2013. Richard Johnson is an assistant warden at the Charlotte Correctional Institution. In April of 2011, he worked in the Inspector General?s Office at the Florida Department of Law Enforcement. Mr. Johnson investigated an administrative case against Respondent stemming from the April 2011 incident. He spoke to Mr. White, and recorded an interview with him. He did not speak with Ms. Bradie. In sum, Petitioner proved that on April 9, 2011, Respondent was present at an altercation at the Cottondale Villas. She had a cut on her hand, and there was a large amount of blood on the pavement. All of the other people present smelled of alcohol or admitted to drinking. Petitioner presented no testimony from anyone who was present during the altercation to describe the events leading to the charges against Respondent. Further, Petitioner presented no competent evidence regarding the item allegedly used to cut Mr. White, as there was no evidence regarding the discovery of any item found at the scene. Respondent?s Story Ms. Bradie testified on her own behalf. She is the only person who testified that was present during the altercation. She testified that she went to Cottondale Villas to pick up her child from her mother, who cared for the child while Ms. Bradie was at work. When she was leaving her mother?s apartment, she heard her brother, Lesidney, outside arguing with Marques White. According to Ms. Bradie, she put her baby in the car and told her brother to go inside, because Marques White was “not worth it.” This apparently angered Mr. White, who started arguing with her. Ms. Bradie?s mother came out of the apartment and tried to break up the argument. Mr. White swung around her mother in order to try to hit Lesidney, and continued arguing with both Ms. Bradie and her brother. A bystander, Marcus Bellamy, pulled Lesidney away from the argument. At that point, Marques White jumped on Ms. Bradie and started hitting her in the face. Ms. Bradie is five feet, one-inch tall. She testified that Mr. White had pushed her down to the ground. While she was close to the ground, she picked something up off the pavement and started swinging to try and get him off of her. While she believes she probably cut him in her effort to get free, she could not identify the object she picked up (which was never located) or say that all of his injuries were a result of her actions. There is no evidence that she deliberately tried to cut him at all, much less that she meant to cut his face. Ms. Bradie?s account of the events is the only evidence from a witness who was actually present at the scene, and her testimony was credible. The most persuasive and compelling testimony presented is that Ms. Bradie acted in self-defense. No evidence was present to rebut her testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of February, 2014, 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 5th day of February, 2014. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ashley Bradie (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services 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 issue to be determined is whether Respondent is guilty of violating Sections 943.1395(7) and 943.13(7), Florida Statutes (2007), and Florida Administrative Code Rule 11B-27.0011, as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact At all times material to these proceedings, Respondent was certified by Petitioner as a correctional officer, and issued certificate number 183026. On June 25, 2008, Respondent was a passenger in a vehicle that he owned but that was driven by his son, James Donaldson. The car was pulled over by Officer Paul King of the Starke Police Department because its brake lights were not working. Officer King explained to the driver the reason for the stop. Officer King smelled what he recognized to be burnt cannabis coming from inside the vehicle. He asked both occupants if they had any marijuana in the vehicle, and both men denied having any. Officer King asked James Donaldson to exit the vehicle. Upon searching his person, Officer King found in a pocket of James' trousers a plastic bag containing less than 20 grams of cannabis. He also seized a package of cigarette rolling papers, of a type commonly used to roll marijuana, from the seat of the car. James Donaldson identified the rolling papers as belonging to him. At that point, Officer King arrested James Donaldson, and placed him in handcuffs. Officer King then asked Respondent to exit the car, and asked him if he had anything on his person. Respondent stated that he had marijuana. A search revealed that in his right-front shorts pocket, there was a silver metal grinder with marijuana residue. In Respondent's left-front shorts pocket, Officer King found a clear plastic baggy containing a green leafy substance, less than 20 grams, along with a package of rolling papers. The metal grinder was of type commonly used to prepare cannabis for smoking, and was approximately the size of a chewing tobacco can. Officer King used a field test kit to test the specimens taken from both men. Both tested positive for cannabis. Officer King then arrested Respondent for possession of cannabis and possession of drug paraphernalia. Respondent did not deny having the marijuana or the metal grinder on his person. However, he claimed that both were hidden within a pack of cigarettes that belonged to his son, but that he had picked up the pack and put it in his shirt front pocket at his son's request. He claimed that he did not smell the marijuana because he has difficulty smelling anything. Respondent's claim is not credible. Even assuming that the metal grinder and the baggie of marijuana would fit in a cigarette package, it is not believable that Respondent would pick up a cigarette package containing such an implement and not realize the cigarette package contained something other than cigarettes. Officer King's testimony that he did not confiscate a cigarette package, on the other hand, was clear, straightforward and candid.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent has violated Section 943.13(7), Florida Statutes (2007), and revoking his certification. DONE AND ENTERED this 31st day of December, 2009, 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 31st day of December, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harry J. Donaldson Michael Ramage, General Counsel 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
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since November 29, 2001, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 2000056. Javeres Kendrick and Willie Kendrick are Respondent's brothers. Respondent has lived in the same residence as her brother Javeres her entire life. Since February of 1999, when they were placed on probation for committing the felony crime of lewd and lascivious assault on a child under 16 years of age, Javeres Kendrick and Willie Kendrick have been under the supervision of the Florida Department of Corrections (DOC). On or about November 27, 2000, Respondent completed and submitted to the Department of Corrections (DOC) a Correctional Officer/Correctional Probation Officer Supplemental Application. At the time, she did not have any training or experience as correctional or probation officer. Question 4 on this employment application asked: Do you have a business or personal relationship with anyone presently incarcerated or under the supervision of the Florida Department of Correction's system? If yes, give name, relationship, and place of incarceration/supervision. Respondent answered this question by checking "No." In doing so, she believed that she was providing accurate information to DOC. Although she was aware that her brothers were on probation, she did not understand them to be "incarcerated or under the supervision of the Florida Department of Correction's system," within the meaning of the question, because they were not in state prison. Furthermore, in her mind, she had a familial, not a "business or personal relationship" with her brothers.3 Respondent was ultimately employed by DOC as a correctional officer and assigned to Broward Correctional Institution (BCI). On September 18, 2003, a team of DOC correctional probation officers (Team), consisting of Raul Fernandez, Sara Bermudez, and Juan D'Elia, accompanied by local law enforcement officers, including David Torres of the Miami-Dade County Police Department, went to the residence of Javeres Kendrick at 4270 Northwest 197th Street, Miami, Florida, to conduct a "pre- planned sex offender compliance check." The purpose of the Team's visit was to ascertain whether Mr. Kendrick was in compliance with the terms and conditions of his probation. When the Team arrived at the residence, Mr. Kendrick was outside washing a vehicle. The Team members exited their vehicles and walked up to Mr. Kendrick. They identified themselves as correctional probation officers and told Mr. Kendrick that they were there to make sure that he was in compliance with the terms and conditions of his probation. To do so, they advised him, they needed to search his bedroom (which they were authorized to do by the court order placing Mr. Kendrick on probation). Mr. Kendrick responded that his bedroom was "a mess" and that he wanted "to go and clean [it] up" before the Team conducted its search. Despite being told that he "couldn't do that," Mr. Kendrick "bolted" away from the Team members and went "inside the house." Officers Fernandez and D'Elia followed Mr. Kendrick to the front door of the residence, where they were met by Respondent, who "intercepted" them and blocked their paths, thereby "prohibit[ing] [them] from entering [the residence] immediately." While standing in their way and interrupting their pursuit of Mr. Kendrick, Respondent, using profanity, yelled at Officers Fernandez and D'Elia in a "hostile and belligerent" manner, expressing her strong displeasure over their presence at the residence. She told them that they "had no right to be there," adding that "every time [they] show[ed] up there [they] always w[ound] up arresting her brother."4 Respondent was asked at least twice to "please move," which she finally did, albeit "in a very slow and deliberate manner." Officer Fernandez instructed Respondent to "take the children out of the residence and to wait outside until [the Team] conducted [its] search." With Respondent out of the way, Officer Fernandez and D'Elia entered the residence. Officer D'Elia spotted Mr. Kendrick "in the second bedroom on the left." Mr. Kendrick had his hand in a chest drawer. While Officer D'Elia "secured" Mr. Kendrick, Officer Fernandez searched the drawer and found "paraphernalia used for the pack[ag]ing of narcotics" and baggies containing what appeared to be cocaine and marijuana. After this discovery was made, Respondent came into the bedroom (contrary to the instructions she had been given) and asked "how much longer [the Team] had left." A conversation between Officer Fernandez and Respondent ensued, during which Officer Fernandez informed Respondent about "the narcotics that were in the drawer." Upon being so informed, Respondent, with the intent to deceive the Team, falsely claimed that the bedroom in which the "narcotics" had been found was not her bother Javeres' bedroom. Rather, she told Officer Fernandez and the other Team members, the bedroom had last been occupied by her uncle, who "had wound up going to jail." As the Team was leading him away from the residence, Mr. Kendrick asked Respondent to "retrieve" for him from "his room" a pair of pants, socks, and tennis shoes that he could wear in jail. Complying with this request, Respondent, followed by Officer Bermudez, went straight to the bedroom in which the "narcotics" had been found (which was Mr. Kendrick's bedroom, contrary to what Respondent had previously claimed) and "retrieve[d]" the items her brother had requested. During her dealings with the Team that day, Respondent revealed that she was a correctional officer at BCI. Upon returning to his office, after having "finished processing Mr. Kendrick and logging in the evidence" seized from Mr. Kendrick's bedroom, Officer Fernandez complained to his supervisor about Respondent's hostile and obstructive conduct during the Team's "compliance check" at Mr. Kendrick's residence earlier that day. Inasmuch as Respondent was a DOC employee, Officer Fernandez's supervisor referred the matter for an internal affairs investigation pursuant to DOC policy. Scott Thomas, a senior prison inspector with DOC, conducted the investigation. As part of his investigation, Inspector Thomas reviewed the contents of Respondent's DOC personnel file (including the employment application she had submitted on November 27, 2000) and obtained sworn affidavits from Officers Fernandez, Bermudez, and D'Elia. In addition, on November 12, 2003, he interviewed Respondent under oath. During the interview, among other things, Respondent repeated the falsehood that the bedroom in which the "narcotics" had been found during the September 18, 2003, "compliance check" was not her brother Javeres' bedroom. In addition, she falsely denied ever having used "profanity towards the [Team] members" conducting the "compliance check" and further falsely denied that that the Team members, during the September 18, 2003, "compliance check," ever told her to "wait outside the house." Respondent made these statements to Inspector Thomas knowing that they were not true. Inspector Thomas determined from his investigation that Respondent had "provided untruthful information" on her November 27, 2000, employment application and that she had engaged in "conduct unbecoming" a DOC employee during the September 18, 2003, "compliance check" at her residence. Based on the findings of Inspector Thomas' investigation, Respondent's employment with DOC was terminated.
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 Allegation Two and Three and, based on these findings of guilt, revoke her certification. DONE AND ENTERED this 21st day of June, 2005, 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 21st day of June, 2004.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based 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 as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S 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 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent’s license as a public adjuster, all lines, should be revoked.
Findings Of Fact Respondent is licensed by the Department as a public adjuster, all lines. His license number is A015739. On September 1, 2004, Respondent pled nolo contendere to three counts of “lewd or lascivious molestation” in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida. Each count was a second degree felony pursuant to Section 800.04(5)(c)2., Florida Statutes (2004).2 On that same date, Respondent was adjudicated guilty of all three counts and was sentenced to 15 years in prison to be “mitigated” to 364 days in jail upon his timely surrender into custody on November 1, 2004. The transcript of the court hearing at which Respondent’s plea was accepted, Exhibit R14, includes an extensive colloquy between Respondent and the judge, the prosecutor, and his defense attorney. The colloquy reflects that Respondent was fully apprised of the plea negotiations between his attorney and the prosecutor; that he was advised of the consequences of the court's accepting his plea and adjudicating him guilty, including the likelihood that he would lose his professional license as a result of his convictions; and that he was advised of his right to reject the plea offered by the prosecutor and go to trial. The circumstances underlying Respondent’s criminal offenses are described in an Affidavit for Criminal Offense dated December 19, 2003, and in a Prosecution Report prepared sometime thereafter. Those documents, which were offered into evidence by Respondent at the final hearing in this case, reflect that Respondent admitted to going into his then 14-year- old step-daughter’s bedroom a number of times over a period of two years to view her genitalia by lifting her pajamas and moving aside her panties while she slept. In August 2005, the Department commenced an investigation of Respondent after it learned of his criminal convictions. The investigation was conducted by Nelson Herold. Mr. Herold compiled records related to Respondent’s public adjuster business as well as documents from the Collier County Clerk’s office related to Respondent’s criminal convictions. Mr. Herold met with Respondent while he was in jail and advised him of the Department’s investigation and its intent to revoke his public adjuster’s license based upon his felony convictions. Respondent was given an opportunity to provide a response as part of Mr. Herold’s investigation, but there is no evidence that he did so. On October 10, 2005, the Department issued a Notice of Revocation, which informed Respondent that his public adjuster’s license was revoked based upon his felony convictions. The Notice advised Respondent of his right to request an administrative hearing, and Respondent timely did so. Respondent was not present at the final hearing. Respondent's counsel waived Respondent's presence at the final hearing and elected to proceed without him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services issue a final order affirming the Notice of Revocation and revoking Respondent’s license as a public adjuster, all lines. DONE AND ENTERED this 10th day of May, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2006.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character as required by chapter 943, Florida Statutes, and Florida Administrative Code Rule 11B- 27.011, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. (2009).2/ Respondent was certified as a correctional officer by Petitioner on July 8, 2009, and holds Correctional Certificate Number 284876. In February through May, 2010, the time frame relevant to this proceeding, Respondent was employed as a correctional officer at Miami-Dade Correctional Institute ("Miami-Dade CI"). Incident Giving Rise to this Proceeding On or about July 29, 2010, Captain Eric Parrish, a midnight shift supervisor at Miami-Dade CI, convened a meeting of several employees under his supervision. Among those present at the meeting were Respondent and Officer Demetrices Demeritte. The purpose of the meeting was to address rumors regarding alleged sexual activity among staff members while present or on duty at Miami-Dade CI.3/ Ultimately, these rumors were determined to be unsubstantiated. However, at the meeting, Demeritte informed Parrish that Respondent had exposed his penis to her while they both were on duty at Miami-Dade CI. Respondent verbally admitted at the meeting that he did show Demeritte his penis, but stated that she had wanted to see it. Parrish ordered everyone in attendance at the meeting to complete an incident report after the close of the meeting.4/ Consistent with Petitioner's standard practice regarding the completion of incident reports, Parrish requested that the reports be submitted by the end of the shift.5/ This gave the employees approximately four hours to complete their reports. Ultimately, Parrish collected completed incident reports from all in attendance at the meeting, including Respondent. In his incident report, Respondent stated that he and Demeritte had engaged in discussions regarding sexual matters on more than one occasion. Respondent acknowledged that he exposed his penis to Demeritte on one occasion when they had discussed its size, and that upon seeing it, Demeritte took off in her post vehicle. The next day she asked him not to do that again because he was not "her man." Respondent stated that he apologized to Demeritte and considered the matter resolved between them as friends. Based on the information provided in the incident reports, Parrish recommended that Respondent and others be reviewed for disciplinary action. On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that he had failed to maintain good moral character, as required by section 943.17, by having engaged in acts that constitute indecent exposure pursuant to section 800.03. Violation of section 800.03 is a misdemeanor of the first degree. § 800.03, Fla. Stat. (2009). There is no evidence in the record that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contendere to, a violation of section 800.03. Evidence Adduced at the Final Hearing At hearing, Demeritte testified that while she and Respondent were on duty inspecting the fence line or refueling vehicles or at other posts, Respondent exposed his penis to her on four separate occasions. In doing so, he would tell her to "look" and would watch her while exposing himself. Demeritte testified that on one of these occasions, he stroked his penis. Demeritte testified that she was uncomfortable and offended by Respondent's actions, that she considered his actions vulgar, and that on each occasion, she drove away. After she finally confronted Respondent, he apologized and never exposed himself to her again. The undersigned finds Demeritte's testimony credible and persuasive. Demeritte reported the incidents to the Equal Employment Opportunity Commission. However, not until the July 29, 2010, meeting did she report the incidents to Petitioner. Demeritte claimed that she did not report the incidents due to a "breach of confidentiality." No specific explanation was provided regarding what the breach of confidentiality entailed or why it deterred Demeritte from reporting the incidents before July 29, 2010. At the hearing, Respondent recanted his statement in his July 29, 2010, incident report that he had exposed his penis to Demeritte on one occasion. Respondent testified that the statements in his report were "sarcastic" and that he had needed more time to complete his incident report. However, Parrish credibly testified that near the end of the shift, Respondent told him he was still working on the incident report, but that at the end of the shift, Respondent provided the completed, signed, dated report and did not ask for more time to complete the report. Respondent denied having exposed his penis to Demeritte while on duty, and testified that he previously had performed as a dancer at private functions and that she may have seen his penis under those circumstances. Respondent's testimony on these points was not credible. Consistent with his incident report, Respondent testified that he and Demeritte engaged in discussions of a sexual nature on several occasions. There is no other evidence in the record directly corroborating or refuting this claim. However, the evidence does establish that around the time of the incidents at issue in this proceeding, there was discussion of, and rumors regarding, sexual matters between officers employed on the midnight shift at Miami-Dade CI. Under these circumstances, the undersigned finds credible Respondent's account that he and Demeritte engaged in discussions of a sexual nature. The undersigned does not find credible any claim by Respondent that Demeritte wanted or asked him to expose his penis to her. However, the undersigned finds it plausible that Respondent may not have understood that Demeritte was offended by his actions, particularly if they engaged in discussions of a sexual nature, and also given that she did not tell him, until after the fourth incident, to not expose himself to her. Indeed, once she told him not to expose himself to her, his behavior ceased and he apologized. There is no evidence in the record that Respondent previously has been subject to disciplinary action by Petitioner. Findings of Ultimate Fact Based on the foregoing, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent exposed his penis to Demeritte on four separate occasions, in violation of section 800.03, and that in doing so, he failed to maintain good moral character, as required by section 943.13(7). Respondent's behavior in exposing himself to Demeritte was inappropriate and unacceptable. However, the undersigned finds that the circumstances afoot around the time of Respondent's actions——specifically, discussions and rumors of sexual matters between staff, discussions of a sexual nature between Respondent and Demeritte, and the fact that Demeritte did not tell Respondent to stop exposing himself to her until after he had done so four times——may have created an atmosphere that led Respondent, mistakenly, to believe that such behavior was not a significant departure from the accepted norm on the Miami-Dade CI midnight shift at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order suspending Respondent's correctional officer certification for a period of six months, imposing two years' probation, and ordering Respondent to undergo counseling. DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 6th day of August, 2013.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility for certification of Correctional Officers within the State of Florida. The Respondent is employed as a Correctional Officer at the Hendry County Correctional Institution. On December 25, 1998, the Respondent worked an 8:00 a.m. to 4:00 p.m. shift as a Correctional Officer. After leaving his shift, the Respondent went home, showered, ate dinner, gathered Christmas gifts for his brother's family, and left the house with his wife. He took his wife to the "Eagles" club and returned to his house to take his wife's children to their father's house. He then drove to his brother's house, about an hour from the Respondent's home, where he visited and exchanged gifts. At about 11:00 p.m., the Respondent departed from his brother's house and went to the "Eagles" club, where he learned his wife had gone to the "Moon Cricket" bar. The Respondent proceeded on to the bar where he met his wife and friends. While at the bar, the Respondent consumed an indeterminate quantity of beer in the two hours remaining until closing time. The bar is small, and a "party" atmosphere prevailed. Apparently beverage orders were not taken, rather the bar's owner (a friend of the Respondent's) repeatedly brought bottled beers to the table. It is not possible to quantify the Respondent's consumption in a credible manner. When the bar closed shortly after 2:00 a.m. on December 26, 1998, the Respondent collected his wife, who was admittedly intoxicated, along with additional quantities of beer, and began to drive home. At approximately 2:30 a.m. on December 26, 1998, the Respondent was observed by Collier County Sheriff Deputy Tom Amey to be driving without headlights. Deputy Amey has completed substantial training in detection of persons driving under the influence of alcohol or other substances and in conducting field sobriety evaluation. At the time of initial observation, the Respondent's truck was stopped at an intersection facing towards Deputy Amey's vehicle. Deputy Amey flashed his headlights apparently to remind the Respondent to turn on the headlights, but got no response from the Respondent. When the Respondent proceeded through the intersection without headlights, Deputy Amey turned his vehicle around, followed, and then stopped the Respondent. After approaching the Respondent's vehicle, Deputy Amey asked for the Respondent's license and registration. The Respondent responded very slowly and deliberately to the deputy's instructions, fumbling with his wallet as he removed the documents. Deputy Amey observed that the Respondent's eyes were "glassy" and "bloodshot" and that there was a "moderate odor” of alcohol present. Deputy Amey also observed "cool, fresh" beer located on the front floorboard and the rear floorboard of the Respondent's extended cab truck. Deputy Amey asked the Respondent to exit the truck and the Respondent did so slowly. While talking to the Respondent, Deputy Amey observed that the Respondent's speech was slightly slurred and "thick-tongued." Deputy Amey asked the Respondent to submit to a field sobriety exercise. The Respondent stated that his knee prevented him from completing the physical tests. Deputy Amey administered the "horizontal gaze nystagmus" (HGN) test. Nystagmus is an involuntary eye motion (described as a "jerkiness") typically exhibited by persons under the influence of alcohol or other central nervous system depressants. The HGN test is a standard part of the field sobriety evaluation. An HGN test permits the observation of the level of "jerkiness" in a person's eyes. Normally, a person's eyes appear to move smoothly. Under the influence of alcohol or other substances, a person's ability to control eye movement is diminished, and a "jerky" motion is observable. Deputy Amey has received specific training related to administration of the HGN test. Upon observing the Respondent's eye movement during the test, Deputy Amey reported that the onset of the Respondent's nystagmus was "almost immediate" and "very distinct." Based on the deputy's observation, the Respondent was placed under arrest for driving under the influence and was transported to the "stockade" in Immokalee, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a Final Order imposing a one-year probationary period and requiring such counseling as the Department deems appropriate. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 September, 2001. COPIES FURNISHED: H. R. Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 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
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Aubrey Minor was certified by the Criminal Justice Standards and Training Commission on April 24, 1986, the day the Commission issued respondent a certificate, No. 23-86-002-01. In the late summer of 1988, Aubrey Minor worked as a correctional officer in the Escambia County Jail. On September 1, 1988, McArthur Young, an inmate, was so slow leaving the visiting area that respondent locked him in and left, in order to avoid further delaying escorting other inmates to their cells. When he returned to retrieve the recalcitrant inmate, and while he was escorting him down the corridor that runs by the control room, he repeatedly asked him his name. Exasperated at the inmate's failure to tell him, respondent Minor grabbed McArthur Young's arm in order to read the name written on the wrist band he wore. When Mr. Young pulled his arm away, Mr. Minor grew still angrier, and swung with full force, hitting McArthur Young in the jaw with the jail keys. Although only two six-inch brass keys were on the stainless steel ring when respondent hit the inmate, each weighed a pound, according to uncontroverted testimony. Shouting by both men had attracted the attention of other Escambia County Jail personnel. Correctional officer Michael D. Miles saw respondent swing while the inmate's arms hung at his sides. Reacting threateningly to the blow, McArthur Young stepped toward respondent Minor. By this time, Corporal Frank Mayo, who had reached the spot where the men stood, stepped between them. While another officer took respondent in hand, Corporal Mayo led the inmate to the infirmary, where the nurse gave him an ice pack. His jaw was red and slightly swollen but the tooth he claimed was loose did not seem loose to the nurse. In the ensuing internal investigation, respondent lied to his superiors, although he conceded that "he got a little bit out of control." T.37. After the investigators concluded that his use of force had not been justified, Escambia County terminated respondent's employment. Jail policy forbids the use of force, even in response to a verbal threat.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificate. DONE and ENTERED this 1st day of June, 1990, in Tallahassee, Florida. COPIES FURNISHED: Abrey Minor 901 West Massachussetts Lot #17 Pensacola, FL 32505 Joseph S. White, Esquire Department of Law Enforcement Tallahassee, FL 32302 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 ROBERT T. BENTON, II 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 1st day of June, 1990.
