The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
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 dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, 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 16th day of February, 2004.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure practices and discipline of correction officers in the State of Florida. The Respondent is a certified corrections officer in the State of Florida, employed at times pertinent hereto at Broward Correctional Institution as a Corrections Officer I. On June 17, 1982, assistant personnel manager for the Broward Correctional Institution, Virginia Dolson, was arriving at the institution for work at approximately 7:40 a.m. She and her companion, Marie Lombardi, walked past the guard post occupied by a vehicle in which the Respondent was sitting. As they approached the vehicle closely, they noticed that the Respondent was asleep with his head leaning against the screen over the vehicle window on the driver's side. They spoke loudly in his presence and he took no notice. Finally, another corrections officer, Sergeant Pepitone, tapped on the side of the vehicle with her umbrella, causing the Respondent to awaken. On June 24, 1982, at approximately 7:50 a.m., Marie Lombardi and Virginia Dolson, were leaving the parking lot, approaching their work place and observed the Respondent standing near a vehicle parked on guard post #1. They observed the Respondent aim a pump-action shotgun into the air, sight down the barrel and pump the gun twice as though a round were being placed into the chamber. It is the policy of the Department of Corrections to never remove a weapon from a vehicle unless "probable cause exists for doing so. Correction officers are instructed not to remove such weapons from vehicles while merely standing beside a vehicle on a guard post. On June 25, 1982, Lieutenant George Palacios, a shift lieutenant with the Broward Correctional Institute was on duty at the central control room. He attempted to communicate with Officer McWhorter on guard post #2 that day and his initial response was very slow. Later that morning, at approximately 7:15 a.m., he again attempted to contact Officer McWhorter and received no response on Officer McWhorter's truck radio. Lieutenant Burnstein and Sergeants Brothers and Moskowitz then drove to the Respondent's guard post and observed the Respondent sitting in his truck on post #2 with his head leaning against the window on the driver's side. They walked close to the truck and observed the Respondent with eyes closed and mouth open, appearing to be asleep. The window was half open and from a distance of about 3 feet, Officer Burstein said, "Officer McWhorter are you awake?" He received no response and repeated this statement three times, each time receiving no response from the Respondent. Sergeant Brothers walked around the truck, directly in front of McWhorter, and waved his arms and again received no response from Officer McWhorter. Officer Burstein did the same and then walked to the side of the truck and hit it with his hand. The Respondent still did not move. He hit the truck a second time and McWhorter moved his head and appeared to reach down at the floor of the truck. At that point the Respondent was relieved of his duties at post #2 and he and Lieutenant Burnstein came back to the office of the "captain" at the administrative offices of the institution. Captain Thomas, the Respondent's supervisor was advised of the incident. A meeting was conducted to discuss this incident with the Respondent during the course of which the Respondent's behavior was characterized by incoherent, confused speech, and bloodshot, glazed-appearing eyes. Officers Moskowitz, Brothers and Burnstein opined that he appeared to be under the influence of alcohol or drugs. Captain Thomas, pursuant to Rule 33-4.02(10), Florida Administrative Code, asked the Respondent to submit to a urinalysis and blood test, but the Respondent refused. On other occasions, Sergeant Brothers had observed the Respondent appearing to be under the influence of alcohol or drugs in that his conduct was characterized by slurred speech, eyes that did not dilate, uncontrollable eye movements and a general appearance of disorientation. Superintendent Robert Bowler, formerly of Broward Correctional Institution at times pertinent hereto, also had a meeting with the Respondent on June 25, 1982, and observed that the Respondent appeared to be "under the influence" that morning in that he appeared disheveled, groggy and otherwise disoriented. It has been established that the Respondent was under the influence of alcohol or another intoxicant on the above occasion. On May 25, 1982, Sergeant Aldean Wright, a Corrections Officer II at Broward Correctional Institution, was acting officer in charge. On that evening, the Respondent was assigned to perimeter post #2 for one-half of the shift, but left his post without permission and went to a truck stop for breakfast before reporting inside the institution for the second-half of his shift. He then lied about his whereabouts during that absence. Sergeant Wright remonstrated with him about his absence from his post without leave and gave him a written reprimand. (Petitioner's Exhibit G) Former correctional security shift supervisor, John Kording, described past disciplinary counseling directed at the Respondent for an infraction involving inattention at his post position, specifically, performing mechanical work on his "post vehicle" when he should have been observant of his assigned portion of the compound and inmates. This incident occurred in July, 1981. On December 22, 1981, Officer McWhorter wrote and submitted an incident report directed to the Assistant Superintendent of the institution, circumventing the security department's chain of command and was "counseled" regarding this infraction by Mr. Kording. No evidence was adduced regarding his use of unnecessary force upon an inmate however. The Respondent was an employee at Broward Correctional Institution from 1978 through July, 1982. For the above-stated infractions, the Respondent was terminated with prejudice in July, 1982. The Respondent had been furnished all pertinent rules for employee conduct for correctional officers such as himself when employed at this institution and for the Department of Corrections, among which rules was that which prohibited the use of narcotics or intoxicants while on duty, as shown by a receipt for the rules signed by the Respondent (Exhibit N). The Respondent was aware of the pertinent rules of conduct with which he was to comply during his employment with the Department of Corrections and failed to adhere to them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the arguments of the Petitioner, It is, RECOMMENDED: That Corrections Officer Certificate No. C-6698, held by the Respondent Craig C. McWhorter, be revoked. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Craig McWhorter 1131 Northeast 201 Terrace North Miami Beach, Florida 33179 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 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 in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent has not maintained good moral character; and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014. On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent acknowledged at the hearing that her responses were accurate. As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted. Respondent has not previously been the subject of any disciplinary action. On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris. On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida. On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and 50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes. Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash bond to get him released, and getting money put on the phone so he could make calls from the jail. During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call, Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again. Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted. Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so. Captain Bennett established that the Hamilton County Jail has: standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks, T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir. Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge. During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge. Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge. In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.” At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim): Would i be able to bring him some soap and deodorant and something to eat in there If they gonna pick him up for transport will i be able to see him before he go? Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed. Respondent gathered some items, including boxers, t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles. There was no evidence that Respondent attempted to conceal the noodles. Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of June, 2019.
The Issue The issue in this case is whether the Petitioner is qualified to take the examination for licensure as a real estate salesperson.
Findings Of Fact On or about March 6, 1995, the Petitioner filed an application seeking to be licensed as a real estate sales person. In response to question number 9 on the application form (which inquires about the applicants's criminal history), the Petitioner answered in the affirmative and included the following explanatory details: I entered a plea of guilty to 1 count of distribution of a controlled substance on March 25, 1993, in Federal Court, before Judge Adkins. I was sentenced to 2 years in a Federal Camp. On January 23, 1992, the Petitioner was arrested and charged with two felony charges related to possession of cocaine and conspiracy to possess cocaine. On March 26, 1993, the Petitioner entered a plea of guilty to Count 2 of the indictment. Count 2 charged the Petitioner with conspiracy to possess with intent to distribute cocaine, which is a Class B felony in violation of 21 USC Section 846. On March 26, 1993, a judgment was entered in which the Petitioner was adjudged guilty of the crime described above, was sentenced to a prison term of 24 months, and was fined $15,000.00. The judgment also imposed 4 years of supervised release following release from prison. The Petitioner served 15 months in federal prison and was then transferred to a halfway house for a period of four months. The Petitioner then served the last two months of his sentence on home confinement. He was released from confinement on May 25, 1995, at which time he began a four-year period of probation. The Petitioner is presently on probation. His probation period is presently scheduled to end in May of 1999. With good behavior he may be able to obtain an earlier release from probation. Since his release from confinement the Petitioner has been making regular payments towards his $15,000.00 fine. He presently owes about $10,500.00 on the fine. Following his arrest, the Petitioner cooperated with law enforcement authorities and his cooperation led to the arrest of a number of other people on charges related to possession or distribution of cocaine. Since his release from confinement the Petitioner's primary employment has been in the carpet business. The Petitioner appears to have an earnest desire to be rehabilitated. He did not, however, present any persuasive evidence that he had achieved that goal. Notably absent from the record is any testimony from friends, relatives, neighbors, employers, or business associates regarding such matters as the Petitioner's present character and whether he is honest, truthful, and trustworthy.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application. It is further recommended that such denial be without prejudice to the Petitioner's opportunity to file a future application as such time as he may have persuasive evidence of his rehabilitation. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 23rd day of February 1996. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties: Proposed findings submitted by Petitioner: (None submitted.) Proposed findings submitted by Respondent: Paragraphs 1 through 10: Accepted in substance with a few additional details in the interest of clarity. Paragraph 11: Rejected as constituting argument about the quality of the evidence, rather than being a proposed finding of fact. Paragraphs 12 and 13: Rejected as a combination of subordinate and unnecessary details and argument. COPIES FURNISHED: William N. Halpern Assistant Attorney General Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Mr. Raul Bado 8490 Southwest 96th Street Miami, Florida 33156 Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
The Issue Whether Respondent's certification as a correctional officer may be revoked or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for failure to maintain the qualifications set out in Section 943.13(7), Florida Statutes, requiring such officer to have good moral character. At formal hearing, Petitioner presented the oral testimony of Benny Morse Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one exhibit admitted in evidence. Respondent presented the oral testimony of his wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter, Petitioner filed the transcript and submitted proposed findings of fact and conclusions of law within the extension of time granted by order. Petitioner's proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Respondent submitted no post-hearing proposals.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on November 4, 1974, and was issued certificate number CORR/C-0148. Respondent was first employed by the Florida Department of Corrections on November 4, 1974, as a correctional officer at the Hendry Correctional Institution. At all times material to the issues in the case, the Respondent was so employed and held the rank of lieutenant. During early August of 1984, Benny Platt was incarcerated at the Hendry Correctional Institution as an inmate. Platt was acquainted with Respondent Ping, who approached Platt during this period of time requesting a $10,000 loan to defray Respondent's wife's doctors' bills. Another inmate at the prison, Mark Krebs, was a friend of Platt. On August 10, 1984, Krebs was being held in solitary confinement as a punishment for Krebs' violation of prison rules by drinking and fighting. Platt was interested in helping Krebs to be released from solitary confinement so that Krebs would be eligible for work release. Platt approached Lieutenant Coburn, another correctional officer at Hendry, to obtain some relief for Krebs after Krebs had been in solitary confinement for 2 days. It was common practice for inmates to approach Respondent Ping or any other lieutenant for these types of requests, however, at the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was either on suspension or on some variety of leave due to Ping's two previous heart attacks. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and knew Respondent Ping by virtue of their common employment. Respondent had been Lt. Coburn's superior for some period of time in the past. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs, Lt. Coburn said he did not know if he could help but he would look into the situation. Lt. Coburn then asked Platt what Platt could do for him in return. Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn replied, "For what." Platt told him it was for trying to borrow money from inmates. (TR 25-26) On August 11, 1984, as part of a planned investigative technique to verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the Respondent at the Respondent's home. The Respondent accepted Platt's collect telephone call, and with Platt's permission, Lt. Coburn taped their conversation. Platt told the Respondent that he could not get the Respondent $10,000, but could get $5,000 to $6,000 at low interest with no problems. The Respondent replied that this amount would do. Platt then asked about Krebs' release from solitary confinement. The Respondent stated that he did not know what he could do, but as soon as he got back to Hendry, he would see what he could do. This is basically the reply made by Lt. Coburn when Platt had approached him earlier. On August 14, 1984, Respondent returned to work at Hendry. That day, Platt, under instructions from Lt. Coburn, approached Respondent at the prison and engaged him in conversation, which Lt. Coburn again taped with Platt's permission. Platt told Respondent Ping that he had arranged to get a $5,000 loan for Ping and told Ping to meet with Platt's niece at a place in La Belle, Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as his niece's name. On August 17, 1984, Florida Department of Corrections Inspector Diane Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his home. By arrangement, the two met on August 20, 1984, at the Crossroads Restaurant a/k/a White's Restaurant in La Belle, Florida. Prior to Respondent's arrival at the restaurant on August 20, 1984, Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed recording and receiving equipment in the restaurant's supply room in order to be able to overhear and record the transmissions of a microphone concealed on Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed themselves in the kitchen where they had a clear view of the table designated for the money transaction. At the appointed time and date, Inspector Enfinger, masquerading as Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table and he asked her to join him and his wife and a female dinner guest who were with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this suggestion as a ruse to see if a promissory note or other record of the transaction would be required so that the Pings would know if the transaction constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had plausible, if not probable, reasons for their state of mind and belief that some plot against them by Department of Corrections personnel was afoot, and Respondent had good probable cause not to trust inmate Benny Platt's several representations to him. Respondent Ping knew Platt's relatives were not from La Belle. Platt had dressed unusually on August 14, 1984 so as to cover the concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping both by telephone and in person had followed warnings received by Mr. and Mrs. Ping concerning attempts to oust Ping from employment due to his heart condition and resultant excessive absences. Although the content of these warnings is pure hearsay, the evidence of the warnings has not been accepted for the truth of the content asserted, i.e. that there was any such plot afoot. It is admissible and has been considered only to show the Respondent's and Respondent's wife's state of mind. Respondent Ping testified that he never intended to accept the loan offered by Platt but that if there were loan papers to sign, he planned to explain to "Sylvia Cox" what he had suspected about a plot before he declined the loan, since in his view, a loan agreement would make the transaction legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of trying to trap him. "Sylvia Cox" and the Respondent went outside to the parking area, but since the authorities' plan was for Cox/Enfinger to remain at a specific table inside the restaurant for her safety and for surveillance purposes, she requested that they return inside. Inspector Enfinger and the Respondent then sat at the designated table. Cox/Enfinger told Respondent that she was unable to get all the money, but had $1,000 with her and would get $4,000 to him later in the week. She produced no papers, but counted out ten one-hundred dollar bills onto the center of the table. Respondent picked up the stack of bills, holding it in both hands, then dropped the money, said he had "changed his mind" and did not need any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul- Wasi came out of the kitchen and arrested Respondent for the offense of unlawful compensation by a public official, Section 838.016, Florida Statutes. There are several inferences that can be drawn from Respondent's dropping of the money, but it is immaterial that Respondent maintains he dropped the bills as part of his intent to unmask a "set up" and could not see the kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt. Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and Respondent. According to Platt, Respondent's original request for a $10,000 loan occurred nearly two weeks before Krebs was confined. This renders it impossible for Respondent's original loan request to have been on a quid pro quo arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get them done." (TR 11). Platt was clearly attempting to ingratiate himself with Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging, initiated the idea of releasing Krebs when Platt first phoned Respondent, but Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement. No witness ever directly stated that the loan was conditioned on such an arrangement between Platt and Respondent. Platt vaguely termed it a "money situation," but Lt. Coburn confirmed that the money transaction between Platt and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to Cox/Enfinger what the money was for (TR 75). Further, it strains reason that since accommodations were made on a regular basis between corrections officers and inmates to get other inmates out of solitary confinement, that anyone involved in this "money situation" could have believed the real $1,000 (let alone the promised sum of $5,000) was being paid by Platt to Respondent in exchange for getting Krebs out of solitary confinement. Additionally, absent any proof that Krebs would have remained in solitary confinement for what seems an extraordinary length of time (August 9 - August 20) or that Respondent released Krebs, or that Lt. Coburn did not release Krebs, all of the "money situation" seems totally separate and apart from any services, illicit or otherwise, which Respondent may have been asked by Platt to perform. Further, Respondent's behavior, while rather extreme and based on suspicion, is adequately explained by his state of mind. His belief that he was being "set up" is not incredible under the foregoing facts as found. On August 21, 1984, Respondent was terminated from his employment at the Hendry Correctional Institution. On January 21, 1986, the Respondent entered a plea of nolo contendere in absentia to the charge of acceptance of unauthorized compensation pursuant to Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of the first degree and upon the assurance of the Court that adjudication would be withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an administrative penal proceeding for any recognized purpose. See Sections 90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984); Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis, 631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977). However, Respondent admitted the plea and waived any objections to admission of the plea. (TR-77).
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing this cause as against Respondent. DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143 Respondent filed no post-hearing proposals. The following constitutes specific rulings upon Petitioner's proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes: Covered in FOF 1. Covered in FOF 2. 3, 4, 7. Covered in FOF 3. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 4. Covered in FOF 4. Rejected as mere recitation of testimony, as subordinate and unnecessary, as largely not credible and as not supported by the greater weight of the credible evidence in the facts as found. Except as subordinate and unnecessary, covered in FOF 6. Rejected as unnecessary. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 5 and 7. Except as subordinate and unnecessary, covered in FOF 8. Rejected as unnecessary. 14, 15, 16. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 9. 17-18. Rejected as unnecessary. 19, 20, 21. Covered in FOF 10-11, and 14. 22. Rejected as unnecessary. 23, 24. Covered in FOF 12. 25. Rejected as unnecessary. 26, 27. Except as subordinate and unnecessary, covered in FOF 13. 28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14. Covered in FOF 16. Except as subordinate and unnecessary, covered in FOF 17. 33, 34, 35, 38 and 39. To the extent supported by the credible evidence as a whole, covered in FOF 17. 36, 37. Rejected as largely subordinate and unnecessary and otherwise as immaterial and as not supported by the greater weight of the credible evidence as found in FOF 17-18. Rejected as unnecessary. Covered in FOF 20. Except as subordinate and unnecessary, covered in FOF. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Gerald T. Ping 6690 Southwest 88th Trail Okeechobee, Florida 34574 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on June 4, 1985, and was issued certificate number 32-85-502-02. The certificate has remained current through the present. Respondent served as a correctional officer for the Highlands County Sheriff's Office for about seven years, until he resigned shortly after the incident described below. At the time of this resignation, he was a corporal. Throughout his employment with the Highlands County Sheriffs Office, Respondent has been a model correctional officer. Unlike some correctional officers at the County jail, Respondent is not overbearing with the inmates, but frequently finds the time to try to help them with their problems. He does not swear publicly or privately. He is 5' 9" and weighs 185 pounds. In late December, 1991, a large number of inmates were housed in the Highlands County jail. The juvenile cellblock in particular was at capacity, and there was no place to isolate individual juvenile inmates from other juvenile inmates. At the time, the juvenile cellblock contained four juveniles: E. M., O. M., C. S., and C. L. Except for C. S., the juveniles are all between 5' 7" and 5' 9" and 140-150 pounds. C.S. stands 6' 2" and weighs about 200 pounds. Except for C. L., the juveniles had been causing trouble in the cellblock. They had flooded the cellblock, destroyed a television, and engaged in other disruptive behavior. E. M. and O. M. had also been threatening to rape and batter C. L., who is intellectually challenged and physically vulnerable to the other juveniles. After receiving reports of the threats, Respondent ordered that E. M., O. M., and C. S. be brought downstairs from their cellblock to the booking office where Respondent worked. A correctional officer brought the juveniles to Respondent and lined them up near a wall. Respondent questioned the juveniles in the hallway in the booking office. This is a crowded, busy area. He questioned them in the presence of the correctional officer who had brought the juveniles down and within a few feet of several other correctional officers and other employees of the Highlands County Sheriffs Office. Respondent was unaware that C. S. had played no role in threatening C. L. Respondent's questioning of C. S. was uneventful. In questioning O. M. and E. M., however, Respondent was unable to communicate to them the importance of good behavior in the cellblock. Reasonably fearing that the juveniles might carry out their threats to injure C. L., Respondent became more insistent that they behave themselves. Instead of indicating a willingness to obey Respondent's orders not to harm the other juvenile, O. M. and E. M. defiantly leaned into Respondent's face, clearly conveying their rejection of his demand for their cooperation. When O. M. tried to walk by Respondent, Respondent, who is right-handed, lightly tapped O. M. in the side of his head so as to cause him to remain where Respondent could address him. There is insubstantial evidence that Respondent also touched E. M. However, even if he did touch E. M. to get his attention, Respondent did so in an even lighter fashion than he touched O. M. Without further physical contact, Respondent, now in a louder tone, emphasized that he wanted the juveniles to behave and demanded that they not bother C. L. again. Neither O. M. nor E. M. was in any way injured by any physical contact with Respondent. Any physical contact on Respondent's part never threatened physical or emotional harm to O. M. or E. M. Sometime after the above-described incident, following an investigation, the Highlands County Sheriffs Office allowed Respondent to resign rather than face termination. Respondent resigned rather than contest the matter.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. ENTERED on November 22, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3381 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7: rejected as unsupported by the appropriate weight of the evidence. 8: rejected as irrelevant. The relevant behavior of the juveniles is described in the order. 9: adopted or adopted in substance. 10: rejected as irrelevant. 11: rejected as irrelevant and subordinate. The only apology from Respondent pertained to his becoming agitated orally--not physically. 12: rejected as irrelevant. COPIES FURNISHED: A. Leon Lowry, II Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dawn P. Whitehurst, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Attorney Linda Rodriguez-Torrent 3750 US 27 North, Suite 12 Sebring, Florida 33870
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
The Issue Did Respondent commit the offense alleged in the Administrative Complaint and, if so, should Respondent's Correction Certificate No. 101468 be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Beverly A. Morris was a certified correctional officer, having been certified by the Criminal Justice Standards Training Commission on October 13, 1986, and issued Correctional Certificate No. 101468. At all times material to this proceeding, Respondent was employed by the DeSoto Correctional Institution. On October 20, 1996, Respondent was assigned as supervisor in "A" Dormitory at the DeSoto Correctional Institution. On October 20, 1996, Inmate Richard Lloyd was assigned to, and a resident of, "H" Dormitory at the DeSoto Correctional Institution. At all times material to this proceeding, Correctional Officer Mark McFry was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer McFry was assigned to east side patrol on the perimeter road. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer McFry observed Respondent with Inmate Richard Lloyd. During this same period of time, Officer McFry also observed Respondent repeatedly touch Inmate Richard Lloyd by rubbing her hand on his stomach, chest, and back. Officer McFry did not report the incident immediately but waited until October 25, 1996, some five days later to report the incident. At all times material to this proceeding, Officer Richard Wuest was employed in security with the DeSoto Correctional Institution. On October 20, 1996, Officer Wuest was assigned to west side patrol on the perimeter road. On October 20, 1996, between the hours of 6:00 p.m. and 7:30 p.m., Officer Wuest observed Respondent with Inmate Richard Lloyd. During this same period of time on October 20, 1996, Officer Wuest also observed Respondent repeatedly touch Inmate Lloyd by rubbing her hand on his stomach, chest, and back. Officer Wuest did not report the incident but was named as a witness in Officer McFry's report. There is insufficient evidence to show that Respondent advised Inmate Lloyd that she was not going to take a polygraph, notwithstanding the testimony of Darron Duval which I find lacks credibility. Subsequent to this incident, Inmate Lloyd was transferred from DeSoto Correction Institution to Hardee Correctional Institution. Respondent wrote Inmate Lloyd a letter dated July 7, 1997, and enclosed a photograph of herself and her daughter which was intercepted by the officials at Hardee Correctional Institution. There was no evidence that any other prior violation had been committed by the Respondent or that any other prior disciplinary action had been taken against the Respondent by the Commission. There was no evidence presented as to what, if any, disciplinary action had been taken against the Respondent for this incident by the DeSoto Correctional Institution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the aggravating and mitigating circumstances set out in Rule 11B-27.005(6), Florida Administrative Code, it is recommended that the Commission suspend Respondent's Correctional Certificate No. 101468 for a period of one year and, upon being reinstated, that Respondent be placed on probationary status for a period of six months subject to terms and conditions imposed by the Commission. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Beverly A. Morris 1811 Southwest Hendry Street Arcadia, Florida 34266
