The Issue Whether Rule 33-6.006(9), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact A. Standing. The Petitioner, Peter B. Dolinger, is not incarcerated by the Respondent, the Department of Corrections. The Petitioner is, therefore, not subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner is an independent paralegal who owns and operates a sole proprietorship specializing in prisoner related issues. The intended scope of the Petitioner's business is to include research and pleading preparation for licensed members of the Florida Bar; agency representation before state agencies, in a qualified non-attorney representative status. The Petitioner, while representing an inmate in an unrelated administrative proceeding before the Division of Administrative Hearings, Archie White v. Parole and Probation Commission, DOAH Case No. 92-2392RXP, sought the release of the inmate's records from the Respondent. The request was denied by the Respondent pursuant to Rule 33-6.006(9), Florida Administrative Code. Archie D. White v. Parole and Probation Commission, DOAH Case No. 92- 2392RXP, is no longer pending before the Division of Administrative Hearings. A Final Order was entered in that case in June, 1992. The Respondent. The Respondent is the state agency required to adopt rules governing the administration of the correctional system in Florida. Rule 33-6.006(9), Florida Administrative Code. Rule 33-6.006(9), Florida Administrative Code, provides: (9) When it is reasonably believed that a party may divulge information contained in the files of the department to an offender, the department shall restrict release of any information to that party. The Petitioner has alleged that Rule 33-6.006(9), Florida Administrative Code, "facially fails to establish an adeqaute [sic] standard for agency decisions. In other words, a person of common intelligence may imply the utilization of a 'reasonable' etst [sic] or standard thstb [sic] differs in totality from thst [sic] of another, most notably in the absence of definition, guidelines or policy on the standard to be applied."
Findings Of Fact Based upon 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 August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07. Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro"). He currently holds the rank of corporal. On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day. During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift. June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day. On June 26, 1989, the third floor of the Main Jail housed approximately 220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing. John Breedlove was one of these inmates. Breedlove was 19 years old. His height was approximately five feet, eight inches. His weight was approximately 210 pounds. Breedlove had the privilege of being a trustee. Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor. Trustees are inmates who are given various tasks to perform in and around the Main Jail. They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services. As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor. Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments. Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility. On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility. The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson. Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor. Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment. Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor. Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor. Beasley complied with Breedlove's request. Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor. Respondent asked Breedlove what he was doing there. Breedlove responded that he had returned to the floor to get a haircut and to do his laundry. Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment. Respondent thereupon continued his feeding of the inmates on the floor. After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms. Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment. Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment. After Gibson arrived, Respondent continued his feeding of the inmates on the floor. After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor. Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment. Breedlove's response was that Beasley had brought him back to the floor. Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor. The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located. It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh. Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor. Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989. Beasley was seated at a desk behind McCartney. Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor. Beasley indicated that she had. Respondent and Beasley then discussed the matter further. The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment. She thereupon retrieved Breedlove. She then walked to the elevators on the floor. Breedlove followed behind her. Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs. The elevator stopped and McKenzie and Beasley walked on. Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity. Respondent heard Breedlove. This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee. Respondent therefore told Breedlove that he was "busted." In jail parlance, "busted" means removed from trustee status. Any correctional officer in the Main Jail has the authority to "bust" a trustee. Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings. Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent. Respondent reacted by repeating his order that Breedlove go to his cell. Breedlove, however, did not move. Respondent then started walking towards Breedlove. Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent. Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell. He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell. As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away. Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder. The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor. Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass. Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass. The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell. Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt. Respondent was more fortunate than Breedlove. He did not come in contact with any glass. He was startled by the breaking of the glass, but uninjured. After falling to the ground, he got off of Breedlove and backed away to regain his composure. He stood by as Beasley rushed to Breedlove's aid. Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance. Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control. Breedlove suffered multiple lacerations on his right cheek as a result of the incident. At the jail clinic, bandages were wrapped around his face to control the bleeding. Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment. At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches. After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove. A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident. D'Erminio ordered that the matter be investigated. An internal investigation of the incident was conducted. Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro. Respondent successfully appealed his suspension. He subsequently was promoted to corporal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993. STUART M. LERNER 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 13th day of August, 1993.
The Issue The issue to be determined in this case is whether Respondent, a certified correctional officer, committed the offenses alleged in the Administrative Complaint, and if so, what discipline or penalty is appropriate.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission (Commission), is the agency of the State of Florida vested with the statutory authority pursuant to Section 943.1395, Florida Statutes, to certify the employment of correctional officers. Respondent, Loretta L. Scott, is a certified correctional officer holding certificate number 157788 issued by the Commission. At all times material to the allegations of the Administrative Complaint, Respondent was employed, and on duty as a correctional officer at the North Florida Reception Center (NFRC), a correctional facility of the DOC. On July 15, 1995, an incident of prisoner abuse occurred at NFRC involving the striking of an inmate, John Graham, by Corrections Captain Bailes during a formation of the inmates in the yard. The day of the incident was Respondent's first day on duty as an officer trainee at NFRC. Respondent was assigned to the team of officers on duty in the NFRC yard at the time of the incident. At some time prior to the incident, Respondent had left the yard for a short while to use the bathroom. After the incident, inmate Graham was escorted from the yard to the NFRC hospital by Captain Bailes and other correctional officers. Respondent was present and in the immediate area of the yard during the course of the incident, and assisted in escorting inmate Graham to the hospital. On or about July 27, 1995, Respondent was twice questioned under oath by Inspector Keith Adams concerning the incident of abuse of inmate Graham. The transcripts of the interviews were admitted as Petitioner's Exhibit 3. Respondent denied witnessing the striking of inmate Graham by Captain Bailes, and initially denied accompanying inmate Graham to the NFRC hospital; however, during the afternoon interview on July 27, 1995, Respondent stated that she assisted in accompanying inmate Graham to the NFRC hospital. Respondent again testified at hearing that she was not present on the NFRC yard, and did not observe the incident of abuse of inmate Graham, but may have been one of the officers accompanying inmate Graham to the hospital. Establishing the witnesses to the incident of prisoner abuse was a material aspect of the investigation conducted by the DOC into this matter. Respondent was not candid and forthcoming in her interviews with Inspector Adams. Respondent was part of the team of officers on the NFRC yard at the time of the incident and was observed on the yard during the time of the incident by several witnesses. While Respondent may have been away from the NFRC yard for a short period of time on July 15, 1995, Respondent was clearly present and accompanied inmate Graham to the NFRC hospital where other matters significant to the internal investigation occurred. Respondent's disclaimer of any material knowledge of the circumstances surrounding the incident of abuse of inmate Graham is not consistent with the evidence of record, and constituted a material misrepresentation to the investigating officer. As indicated above, July 15, 1995, was Respondent's first day on duty in the yard. She had not completed her training and was inexperienced as a corrections officer. The incident of prisoner abuse, which occurred on July 15, 1995, involved a high-ranking corrections officer, and resulted in significant internal personnel ramifications at NFRC.
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 suspending Respondent's certificate for a period not to exceed one year. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Mark P. Brewer, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Loretta L. Scott, pro se 4360 Outrigger Lane Tampa, Florida 33615 A. Leon Lowry, II, Director Division of Criminal Justice Standards & Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The initial Petition for Administrative Hearing was filed on September 12, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 33-3.00125, Florida Administrative Code, and I.O.P. #P2-89.10 were challenged. The Challenged Rule is titled "Inmate Telephone Use." The Challenged Rule sets forth the "minimum telephone privileges that shall be granted inmates. . . ." The I.O.P. apparently deals with the same general subject as the Challenged Rule. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, Affected Interest of the Petitioner, Second Amended Petition, provides the following: 4. That the (Petitioner) is affected by the Agancy [sic] promulgation of 33-3.00125 et. seq. that materially fail to follow the applicable rulemaking procedure setforth [sic] in 120.54. And, establish adequate standards for the Agency decision making as needed June 6th, 1990, August 13th, 1990 that exceed it [sic] grant of authority and fail [sic] to include the requirements of (consistancy) [sic] in delegating to I.O.P. P2-89.10 as 33-1.007(1), (3), (4) mandate and the unbridle [sic] discretion exercised by the Agency to deny (telephonic communication) needed for judicial reason [sic] as requirements of the court in Case # 90- 2968-23 Horton v. Florida Federal S.B. as not being available for judicial needs. [Emphasis in original]. This paragraph is fairly typical of most of the Petition, the First Amended Petition and the Second Amended Petition. Although it contains some "legalize", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to several alleged incidents involving attempts by the Petitioner to use a telephone. In the Statement of the Case and Facts of the Petition, paragraphs 13-20 pertain to an incident which allegedly occurred in December, 1989, paragraphs 21-42 pertain to an incident which allegedly occurred in May and/or August, 1990, paragraphs 43A-48A pertain to an incident which allegedly occurred in August, 1989, and paragraphs 52A-59A pertain to an incident which allegedly occurred in January, 1991. These events are further referred to in other portions of the Petition and throughout the First and Second Amended Petitions. Paragraph 24, Statement of the Facts, of the First Amended Petition is fairly typical of the allegations concerning specific actions complained of by the Petitioner: 24 That the (Petitioner) has repeatively [sic] been subjected to the (practices) arbitrary, capriociously [sic], exercise pursuant to 33-3.00125 et. seq. F.A.C. as by Florida State prison administrators as T.L. Barton, L.E. Turner, P.C. Decker, and dates of July 23rd, 1988; June 5th, 1990, August 13th, 1989 and as setforth [sic] herein; [Emphasis in original]. The alleged incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the particular incidents reviewed. The Petitioner's allegations concerning the alleged incidents involving his attempts to obtain use of the telephone are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, actions of the Respondent in denying him the use of a telephone on the dates raised by the Petitioner in his Petition and his First and Second Amended Petitions. 9 The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the I.O.P. See paragraphs 6, 11-12, 17, 20, 44A, 50A and 60A of the Statement of the Case and Facts of the Petition. The Petitioner also mentions constitutional provisions in numerous other parts of the Petition, the First Amended Petition and the Second Amended Petition. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the I.O.P. is unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rule and the I.O.P. are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition, the First Amended Petition and the Second Amended Petition. On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered. On December 6, 1991, a pleading titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th 1991 According [sic] Opportunity to Amend" was filed by the Petitioner. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies. The First Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the First Amended Petition which, if proven, would support a determination that the Challenged Rule and the I.O.P. are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Amended Petition was entered dismissing the First Amended Petition and giving the parties an opportunity to file proposed final orders. On December 12, 1991, the Petitioner filed a document titled Petitioner's Motion to File a Second and Final Amendment" and a Second Amended Petition. The Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition. The motion to file the Second Amended Petition was denied by Order entered December 18, 1991.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by the Commission as a correctional officer on October 1, 1987, and was issued correctional certificate numbered 83658. Respondent has been employed since that time by the Miami-Dade Department of Corrections and Rehabilitation, assigned to the Turner Guilford Knight Correctional Institute, the stockade. He is also certified by the Commission as an instructor and has taught at the Academy. Respondent is a very professional, "by-the-book" correctional officer. He is considered by his supervisors to be an excellent correctional officer who performs his job efficiently. He has received numerous commendations while at the Department, including a humanitarian award and the Department's monthly recognition award. His annual evaluations rate him consistently above satisfactory or outstanding but for some need for improvement in attendance. January 28, 1994, was Respondent's birthday. He and Pamela Gray, the woman with whom Respondent then lived, walked on the beach together and then went to Denny's Restaurant. While there, they encountered three young women whose car had been stolen while they were inside Denny's. Respondent offered them a ride home, and they accepted. Respondent, in Gray's car, and Gray drove the women to Hamlet Estates Apartments and entered through the security gate. Once inside the complex, Respondent and Gray were walking the women to their apartment when they saw a juvenile walking around looking in the recreation room. They commented to each other that it was too late for a child that age to be out. Since it was after 3:00 a.m., Respondent and the others approached the juvenile who appeared to be 10 to 12 years old. Respondent asked him why he was out at that time of the morning, and the juvenile said he lived there. Respondent asked him which apartment he lived in, and the juvenile stated an apartment number. The young women with Respondent and Gray advised that the apartment complex used letters, not numbers, on the apartments there. Respondent asked the juvenile to show Respondent where he lived, and Respondent and the boy walked off together. The boy was unable to identify an apartment where he lived. The boy was also evasive about his name and telephone number. Respondent and the juvenile returned to where Gray was waiting for them. The young women went to their apartment, and Respondent and Gray drove the juvenile to the security guard booth at the entrance to the complex. Gray waited in the car, while Respondent and the juvenile walked over to the booth and spoke to the security guard. Respondent identified himself to security guard Marvel Williams as Officer Ford and showed her his correctional officer badge. Respondent asked Williams if the juvenile lived there, and she confirmed that he did not. Respondent used the telephone to call the telephone number the juvenile told him was his parents' telephone number, but the number was disconnected. Respondent was concerned about leaving the juvenile at the complex where the juvenile had no right to be. He was concerned that something might happen to the child or that the child might be intending wrongdoing. Respondent then called the Miami-Dade Police Department precinct nearby and requested that a patrol car be sent to pick up the juvenile and take him home. Respondent was told that no unit was available to come there. Respondent then decided that he would drive the juvenile to the precinct and leave him there until the police could take him home. He told the juvenile to come with him, and they walked over to Gray's car. Respondent opened the back door, and the juvenile got in. Respondent then got in the car and drove out of the complex. Because the security guard had some concern about a child going somewhere with a stranger, she copied down Respondent's license number and a description of the vehicle as Respondent exited the complex. She then pushed the redial button on the telephone to verify that Respondent had in fact called the police and discovered that he had. She then wrote an incident report describing what had happened. When Respondent arrived at Station 6, he, Gray, and the juvenile went inside. Respondent and the juvenile approached the desk officer, and Gray sat down in the waiting area. Respondent introduced himself as Officer Ford and showed the police officer his correctional officer badge and identification. He then told the police officer what had transpired and requested that the police take the juvenile home. At the request of the police officer, Respondent wrote down his name, his badge number, his identification number, and his beeper number. The desk officer then buzzed the door to the back area to unlock it and allow Respondent and the juvenile to enter the back area of the station. Respondent held the door for the desk officer and the juvenile, and the juvenile walked into the back area. Respondent told the desk officer that he was tired and was going home. He then walked out of the station, and he and Gray drove home. The desk officer did not try to stop Respondent from leaving. Not knowing what to do next, the desk officer contacted his supervisor, asking him to come to the station to deal with the juvenile. When his supervisor arrived, he described what had happened. In doing so, he told his supervisor that Respondent was an off-duty police officer. This erroneous assumption arose from the fact that Miami-Dade police officer badges and correctional officer badges look alike, but for the wording across the top of the badge. The desk officer's supervisor called Respondent's beeper, and Respondent returned the call. In a hostile and profane manner he told Respondent to return to the station and fill out appropriate paperwork. Respondent told him he would not come back to the station and hung up on him. The supervisor again beeped Respondent, and Respondent again called him back. The supervisor threatened to call Respondent's precinct and report him to internal affairs, and Respondent advised him that Respondent was not a police officer but was a correctional officer. The supervisor then contacted correctional internal affairs and reported Respondent for impersonating a police officer. The police attempted to find out the juvenile's name and address, but he only gave them false information. They finally fingerprinted him and discovered that his fingerprints were on file and that there were several outstanding warrants/pick-up orders against him. Instead of taking him home, they transported him to juvenile hall. Respondent did not identify himself as a police officer to anyone that night. Respondent did not restrain the juvenile or imprison him against his will. The juvenile went with Respondent both to the security guard booth and to the police precinct without protestation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against Respondent in this cause. DONE AND ENTERED this 17th day of December, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1999. COPIES FURNISHED: A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire 2650 West State Road 84 Suite 101A Fort Lauderdale, Florida 33312
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
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards for certified law enforcement and correctional officers in the State of Florida. The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on December 2, 1980, and was issued certificate No. 15-84-599-01. Correctional Officer Teresa Allen worked at Lake Correctional Institute as a guard and at times pertinent hereto was working as a perimeter guard stationed in a pickup truck operating around the periphery of the prison. In the early morning hours of March 18, 1985, Ms. Allen arrived at her duty station in the truck on the perimeter of the fenced confinement area. The Respondent had been witness Allen's counterpart, stationed in that same pickup truck at the same point on the 4:00 p.m. to 12:00 midnight shift immediately prior to Ms. Allen's shift. When Ms. Allen got into the pickup truck, she observed and retrieved from the floor of the pickup truck, a scrap of aluminum foil, a paper towel and a plastic bag. The paper towel appeared to have been wadded up or torn up but had writing in ink on it. It appeared to her to be the Respondent Margaret Seale's handwriting, inasmuch as she was experienced in observing the Respondent's handwriting. She took the handwritten note or letter on the paper towel to her superiors, Lts. Flowers and Branch. Upon receipt of that letter, Lts. Flowers and Branch reconstructed it with cellophane tape. It ultimately was admitted into evidence as Petitioner's Exhibit 1. The letter indicates that the Respondent intended sending the addressee, someone she called "Baby" a "50-cent piece". She thereafter indicated she could not resist "taking a pinch." After the addressee of the letter was to receive the intended "50-cent piece" the Respondent directed the recipient to destroy all foil and plastic immediately thereafter. The Respondent then directed the recipient of the letter as to how to communicate with her, and urged the recipient not to go anywhere, but to "make some money" with her. Mr. Michael Lanfersiek is a special agent of the Florida Department of Law Enforcement. He is trained in narcotics investigation related to smuggling and trafficking in narcotics, controlled substances and related organized racketeering. He was established to be an expert in narcotics investigation, and in interpreting the jargon used in the "drug trade." It was thus established that a "50-cent piece" refers to $50 worth of drugs or slightly under one gram of heroin or cocaine, for example. The reference in the letter to the directed destruction of the foil and plastic refers to the aluminum foil and plastic bag wrapping of the cocaine' or heroin which is trafficked in a powder form and requires such a wrapping. Thus, the witness established that the letter showed that the writer of it had trafficked or transmitted a controlled substance to the recipient of the letter, and was telling him to destroy the wrapping material after receipt of the drug. Inmate James Bryant had been suspected of trafficking in drugs inside the Lake Correctional Institute. The Respondent was not on any inmate's "visitors approved list," but recently had filed a request form asking to visit the suspected inmate, James Bryant. That inmate was later transferred to Marion Correctional Institute some two months after the Respondent resigned. Mr. Michael Page is the Inspector of Prisons for the Marion County area. Mr. Page is charged with investigating both prison staff and inmates and was familiar with the Respondent's handwriting. It appeared that the handwritten note, Petitioner's Exhibit 1, was written in the Respondent's handwriting and he had this confirmed to his satisfaction by a handwriting expert employed by the Florida Department of Law Enforcement. The Respondent refused to confer with Mr. Page without the presence of her attorney. Some two days after he initially requested an interview with her she resigned. There is no question that the Respondent authored the subject letter which reveals clearly that she proposed and intended to transmit illicit drugs to another person, established to be an inmate in the Lake Correctional Institution, for the purpose of that person marketing the drugs to others in return for money, of which the Respondent would receive a portion. Indeed, in the prehearing stipulation admitted into evidence on the day of hearing, and signed by the Respondent as well as Petitioner's counsel, it is admitted by Respondent that she personally wrote the note identified as Petitioner's Exhibit 1, and that she wrote the note while she was employed as a correctional officer at the Lake Correctional Institution. Thus, in view of the stipulation, which is accepted, and the unrefuted testimony of the witnesses who were familiar with the Respondent's duty station and hours of employment, her past history of attempting to contact and visit an inmate already suspected of drug trafficking, and her handwriting, it is patently apparent that the Respondent did indeed possess and intend to deliver to another, for resale, illicit controlled substances. No contrary testimony or evidence having been offered, the charges have thus been established.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, the pleadings and arguments of counsel, it is, therefore RECOMMENDED that the certification of Margaret C. Seales as a correctional officer be REVOKED. DONE and ENTERED this 19th day of May, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Margaret C. Seales 300 Dorsett Avenue Lake Wales, Florida 33853 Daryl G. McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), should revoke Respondent's correctional officer certificate on charges that he is not of good moral character because he committed a third degree felony by introducing contraband onto the grounds of the Hillsborough County Correctional Institution (HCI) in violation of section 944.47(1)(a), Florida Statutes.1/
Findings Of Fact Respondent, Ray D. Jones, was certified by the Commission on October 7, 2003, and holds Correctional Certificate 235065. He was employed as a DOC correctional officer from February 26, 2003, until June 22, 2011. Before this matter arose, Respondent had not been disciplined by the Commission. In early 2010, Respondent was working at HCI and assigned to supervise one of two squads of inmates working outside the prison for the Hillsborough County (County) public works department. On work days, County employees would drive the County vans from a County transportation facility to the prison, drive onto prison property and down the prison's entry road, and stop at a gate in the prison's perimeter fence. There, the work squads leave HCI by passing through the gate and boarding the vans. Respondent would sit in the passenger seat in the cab of the van assigned to his squad, and the inmates would sit in the back of the van. There was a partition between the cab and the back of the van. When the vans returned to the prison at the end of the work day, the supervisors and inmates would unload outside the gate, and the vans would leave the prison. On January 4, 2011, an HCI inmate request was submitted that alleged improprieties regarding the work squads. As part of the investigation of those allegations, the County vans were inspected upon arrival at HCI on the morning of January 10, 2011. Numerous hats, some tools, duct tape, toys, food containers, purses, money, glasses, sunglasses, and other similar items were found on both vans. These items were considered to be "nuisance contraband." In addition, some scissors and three folding knives were recovered. One of the folding knives was in a cup holder in the cab of the van assigned to Respondent's squad. The other two were found in an insulated lunch bag in the cab of the van. Those two knives had blades that were sharp, pointed, and about two and a half to three inches long. The other folding knife was similar. The knives were not authorized by the appropriate prison official for use as tools. The Commission did not prove by clear and convincing evidence that there was candy on the van when it was inspected. At one point, on cross examination by Respondent, Inspector Talbot testified that there was a lunch box full of candy on the van. However, when Respondent questioned him further on the premise that Respondent carried his lunch with him and that he had not passed through the gate at the time of the inspection, Inspector Talbot stated he did not recall whether "there was actually food in there, maybe one of the other inspectors will recall." No other inspector testified. Upon questioning, Respondent readily admitted that he knew the knives and other items of contraband were on the van. He explained that the knife in the cup holder was used to cut debris from lawn mower blades. The two knives in the insulated lunch bag were his personal knives. He explained that he brought them in the bag to the County transportation facility and placed the bag in the cab of the van assigned to his squad, where they stayed. He testified without contradiction that he used his knives to cut up fruit that was part of his lunch. He brought his lunch from home in another lunch bag, which he carried with him when he boarded the van. Respondent denied that any of the knives on his van ever were inside the HCI perimeter fence or that he ever allowed the inmates to have access to the knives. Although the inmates involved were assigned to a work squad, and the knives on Respondent's van were not readily accessible to them, the knives nonetheless posed a potential risk to the public, Respondent and his fellow work squad supervisor, the County van drivers, and the inmates themselves. Upon questioning, Respondent admitted giving candy to inmates. He denied sharing his personal food with inmates. Respondent stated to the inspectors that he did not think the items found during the inspection on January 10, 2011, were a "big deal." Respondent explained that he said this because similar items of nuisance contraband were found on both work squad vans inspected that day and that both vans passed monthly inspections with all the nuisance contraband in open view. Even if the folding knives were not observed in prior inspections, Respondent maintained that the inmates had no access to them and that they never were brought into the prison. DOC disagreed with Respondent and terminated his employment based on the contraband, Respondent's admissions, and his "no big deal" statement. The Commission also disagreed with Respondent and contends that the contraband, Respondent's admissions, and his attitude are clear and convincing proof of bad moral character. The Commission alleged and maintained in its PRO that Respondent brought the knives onto the prison grounds every day he was working as a work squad supervisor between July 1, 2008, and June 22, 2011. However, the evidence was clear that all the contraband items recovered during the inspection on January 10, 2011, including the knives, were removed from the vans at that time, and there was no evidence regarding contraband after that date. It was not clear from the evidence how long prior to the inspection the knives were in the van used by Respondent's work squad. Respondent testified that he brought the insulated lunch bag with his folding knives to the County transportation facility months prior to the inspection. There was no evidence as to how long the other knife was on the van prior to January 10, 2011. Respondent admits that he was "wrong" to have his knives on the van. He does not believe he introduced the knives into the prison. He also does not think he should lose his certification because they were in the cab of the County van and never inside the perimeter fence. Respondent testified that the supervisor of the other work squad van still is working as a correctional officer at HCI although there was not only the same kind of nuisance contraband but also a prohibited metal kitchen knife and fork in the back of his van, where it would be accessible to the inmates, when it was inspected on January 10, 2011. The evidence was not clear as to what discipline that officer received from the Commission, if any.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order suspending Respondent's correctional certificate for two years, giving him consideration for the time he has been unemployed by DOC, and reinstating his certification as of June 22, 2013. DONE AND ENTERED this 21st day of March, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of March, 2013.
