The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Henry A. Faircloth holds certificates as a correctional officer, No. 05-83-599-01, and as a law enforcement officer, No. 16-89-222-03, both issued by petitioner Criminal Justice Standards and Training Commission; and has held them at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of major. On May 25, 1988, he was in a meeting about ongoing construction at the prison, when Glenda Parmer told him he was needed in his office, elsewhere in the same building. She had seen James T. Watson and Charles W. Pumphrey, correctional officers who worked as sergeants at Holmes Correctional Institution, escorting Samuel Collier, an unruly and, as it turned out, intoxicated inmate toward the security complex. After Ms. Parmer, a correctional officer who worked as an administrative lieutenant, recounted events to Major Faircloth and told him "that we had some problems," (T.224) she accompanied him on the walk back toward his office. Before they reached the hall onto which Major Faircloth's office opened, they encountered the obstreperous inmate, his hands in handcuffs behind him, (T.234) a sergeant on either side. Although she came within three or four feet of the inmate, Ms. Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face, either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541. Major Faircloth, both sergeants and the inmate started down the hall and Ms. Parmer "stepped out of the way so they could go down the hallway." T.220. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector William T. Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Respondent Faircloth entered his office and closed the door. T.43. Messrs. Collier, Watson and Pumphrey had preceded him through the door into the office. From outside the office, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mailroom officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mailroom and flexed his right hand. When the mailroom officer inquired about his swollen knuckles, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland. When assistant superintendent Kirkland arrived, he spoke to respondent Faircloth, then accompanied him as he went back into the office where the inmate and sergeants Pumphrey and Watson remained. At some point Lieutenant Benny Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed his view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice" (T.113), or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x- rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59. The next day, Major Faircloth filed a written report, Petitioner's Exhibit No. 9, reciting that Sergeants Watson and Pumphrey and Lieutenant Chesnut had used force against Samuel Collier, but omitting any mention of the force he himself had used. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, he falsely denied under oath that he had hit Samuel Collier and injured his own hand. Petitioner's Exhibit No. 6. Inspector McLain had authority to administer the oath in the course of his official duties, and did so to respondent before interrogating him on June 28, 1988, and on July 6, 1988. On July 6, 1988, respondent again answered questions under oath and falsely answered affirmatively when asked whether he had been truthful during the earlier interrogation.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificates both as a correctional officer and as a law enforcement officer. DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-1395 Petitioner's proposed findings of fact Nos. 1, 4-15, 17, 18, 20, 21, 22, 24-30 and 32-47 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3 and 31 are immaterial as to respondent Faircloth. With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time. With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office. With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times respondent hit Collier. Sergeant Sheppard saw respondent slap Collier only once. But the evidence clearly and convincingly showed that respondent landed additional blow(s), causing his knuckles to swell. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 11, 12, 14, 15, 22 and 23 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, it was not clear that a fence was up and that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence. With respect to respondent's proposed findings of fact Nos. 6 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex. With respect to respondent's proposed finding of fact No. 10, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor. With respect to respondent's proposed finding of fact No. 13, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited. With respect to respondent's proposed findings of fact Nos. 16 and 17, the nurse's findings were not "totally inconsistent." She apparently did not examine the inmate's teeth. Some of the swelling she anticipated evidently occurred. With respect to respondent's proposed finding of fact No. 18, Sheppard's testimony has been credited. With respect to respondent's proposed finding of fact No. 19, when Sheppard saw Faircloth slap Collier he might have been looking through the clear glass window. With respect to respondent's proposed finding of fact No. 20, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI. Respondent's proposed finding of fact No. 24 is rejected as contrary to the weight of the evidence. COPIES FURNISHED TO: Joseph S. White, Esquire Gina Cassidy, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky 438 East Government Street Pensacola, Florida 32501 James T. Moore, Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibit received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Respondent, Mr. John S. Moncrief, was certified by the Criminal Justice Standards and Training Commission on June 12, 1980, and was issued Certificate Number C-9151 Mr. Moncrief worked in various law enforcement positions from 1979 through 1984. From December 1, 1981, until September 27, 1982, Mr. Moncrief worked as a Corrections Officer for the Okeechobee Sheriff's Office. During the entire time that Mr. Moncrief worked in law enforcement, the only charges or complaints made against him were those which form the basis for the charges in this case. During the months of March and April of 1982, Mr. Gerald Ray "Cowboy" Powell was an inmate of the Okeechobee County Jail. During a portion of that time Ms. Lynda Carroll was also an inmate of the Okeechobee County Jail. At all relevant times Mr. Powell was housed in a downstairs cell which was used for trustees and minimum security inmates and Ms. Carroll was housed in the women's cellblock which was on the second floor of the jail facility. It was not possible for an inmate housed on the second floor to come down to the first floor without the assistance of a jail employee. On two occasions during the months of March and April of 1982, Moncrief allowed Ms. Carroll to come downstairs at night and visit Mr. Powell in the latter's downstairs cell. In order to do so, it was necessary for Mr. Moncrief to enter the portion of the jail facility in which female inmates were housed and to open locked doors for Ms. Carroll. On both of the occasions mentioned immediately above, Mr. Powell and Ms. Carroll engaged in sexual intercourse in Mr. Powell's cell.2 On one occasion during the month of April of 1982,another Corrections Officer employed by the Okeechobee Sheriff's Office allowed Mr. Powell to go upstairs at night and visit with Ms. Carroll in her cell. On this occasion Mr. Powell and Ms. Carroll did not engage in sexual intercourse. Mr. Moncrief was not involved in any way with Mr. Powell's upstairs visit with Ms. Carroll. During March and April of 1982 the policies and procedures in effect at the Okeechobee County Jail prohibited male Corrections Officers from entering the area in which female inmates were housed unless the male Corrections Officer was accompanied by a matron or a female dispatcher. Policies and procedures in effect at that time also prohibited inmates of one sex from visiting with inmates of the opposite sex. Mr. Moncrief was aware of these policies. It was a violation of these policies for Mr. Monerief to allow Ms. Carroll to visit with Mr. Powell in the latter's cell.
Recommendation On the basis of all of the foregoing, I recommend that the Criminal Justice Standards and Training Commission. enter a Final Order dismissing all charges in the Amended Administrative Complaint on the grounds of insufficient evidence. DONE AND ORDERED this 23rd day of September, 1985, Tallahassee, Florida. MICHAEL M. PARRISH ISH, 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 23rd day of September, 1985.
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact On December 13, 1991, Ms. Sanders was certified as a correctional officer in the state of Florida. Her correctional officer certificate is numbered 122576. On January 30, 2004, Ms. Sanders was employed as a sergeant by the Florida Department of Corrections at the Brevard Correctional Institution (Brevard), where Joseph Sonntag was an inmate. Mr. Sonntag is a diabetic, who must have insulin injections two times each day. On the morning of Friday, January 30, 2004, Bertie Gladys Florich, a correctional officer at Brevard, went to Mr. Sonntag's cell to awake him to take him to the medical unit for his insulin injection. Mr. Sonntag pulled the cover over his head and did not get up. Ms. Florich told Ms. Sanders that Mr. Sonntag would not get up and asked her to tell him to get up for his injection. Ms. Sanders went into Mr. Sonntag's cell, pulled the cover from Mr. Sonntag, and told his cell mate to leave the cell. Ms. Sanders snatched Mr. Sonntag by the collar of his shirt and flung him across the cell. As he landed, his leg hit the sink. Ms. Florich, who was on the next cell level, heard a thump. She looked at Mr. Sonntag's cell and saw Ms. Sanders helping Mr. Sonntag up. Mr. Sonntag had landed too far from his bunk to have fallen from his bunk. After Ms. Sanders left the cell, Mr. Sonntag told Ms. Florich that Ms. Sanders had pulled him forcibly off his bunk and that he had hurt his leg. Ms. Florich called Sergeant Carter, who was a superior officer. Sergeant Carter went into Mr. Sonntag's cell and came out later, stating that Mr. Sonntag needed to be taken to the medical unit. Mr. Sonntag told a male sergeant that Ms. Sanders had thrown him off the bunk. The male sergeant told Mr. Sonntag that if he made such an allegation that an investigation would be conducted and he would be placed in confinement while the investigation was being conducted. Because he feared being placed in confinement, Mr. Sonntag filled out an incident report, stating that he sustained his injuries by falling off his bunk. Mr. Sonntag was taken to the medical unit for treatment, and he also told medical personnel that he had fallen from his bunk. In an effort to cover up her injury to Mr. Sonntag, on January 30, 2004, Ms. Sanders completed and signed a Report of Injury or Illness, which was submitted to Brevard, indicating that Mr. Sonntag fell off his bunk. The report was false. On Sunday, February 1, 2004, Mr. Sonntag's mother came to visit him at Brevard. He told her that Ms. Sanders had thrown him off his bunk, causing the injury to his leg. Apparently, Mr. Sonntag's mother informed officials at Brevard of her son's allegations, because on Monday, February 2, 2004, Mr. Sonntag was asked by officials at Brevard to give another statement detailing the events that led to his injury. Senior Prison Inspector Barry Glover was assigned to investigate Mr. Sonntag's allegations. As part of the investigation, Mr. Glover interviewed Ms. Florich, who did not actually see how Mr. Sonntag sustained his injuries. While the investigation was being conducted, Ms. Sanders approached Ms. Florich in an attempt to get their stories straight. Ms. Sanders tried to get Ms. Florich to tell the investigator that Mr. Sonntag had either fallen off the bed or jumped off the bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lucinda Sanders did not violate Subsection 943.1395(6), Florida Statutes, or Florida Administrative Code Rule 11B-20.0012(1)(f); finding that Lucinda Sanders did violate Subsection 943.13(7), Florida Statutes; suspending her Correctional Officer Certificate for two years; placing her on probation for two years following the suspension of her certificate; and requiring her to complete such training courses as deemed appropriate by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2006.
Findings Of Fact Respondent Aubrey Minor was certified by the Criminal Justice Standards and Training Commission on April 24, 1986, the day the Commission issued respondent a certificate, No. 23-86-002-01. In the late summer of 1988, Aubrey Minor worked as a correctional officer in the Escambia County Jail. On September 1, 1988, McArthur Young, an inmate, was so slow leaving the visiting area that respondent locked him in and left, in order to avoid further delaying escorting other inmates to their cells. When he returned to retrieve the recalcitrant inmate, and while he was escorting him down the corridor that runs by the control room, he repeatedly asked him his name. Exasperated at the inmate's failure to tell him, respondent Minor grabbed McArthur Young's arm in order to read the name written on the wrist band he wore. When Mr. Young pulled his arm away, Mr. Minor grew still angrier, and swung with full force, hitting McArthur Young in the jaw with the jail keys. Although only two six-inch brass keys were on the stainless steel ring when respondent hit the inmate, each weighed a pound, according to uncontroverted testimony. Shouting by both men had attracted the attention of other Escambia County Jail personnel. Correctional officer Michael D. Miles saw respondent swing while the inmate's arms hung at his sides. Reacting threateningly to the blow, McArthur Young stepped toward respondent Minor. By this time, Corporal Frank Mayo, who had reached the spot where the men stood, stepped between them. While another officer took respondent in hand, Corporal Mayo led the inmate to the infirmary, where the nurse gave him an ice pack. His jaw was red and slightly swollen but the tooth he claimed was loose did not seem loose to the nurse. In the ensuing internal investigation, respondent lied to his superiors, although he conceded that "he got a little bit out of control." T.37. After the investigators concluded that his use of force had not been justified, Escambia County terminated respondent's employment. Jail policy forbids the use of force, even in response to a verbal threat.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificate. DONE and ENTERED this 1st day of June, 1990, in Tallahassee, Florida. COPIES FURNISHED: Abrey Minor 901 West Massachussetts Lot #17 Pensacola, FL 32505 Joseph S. White, Esquire Department of Law Enforcement Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990.
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character, in violation of Section 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional probation officer on February 1, 1991, and as a criminal justice training instructor on December 7, 1999. Her respective certificate numbers are 20851 and 205697. Respondent was first employed by the Department of Corrections (DOC) on August 10, 1990. She was employed as a correctional probation officer. As a result of promotions, Respondent became a DOC Correctional Probation Specialist in February 1995, so that she was responsible for, among other things, various administrative duties, such as handling citizens' complaints of employee misconduct and coordinating training events. In April 2001, Respondent filed a charge with the Equal Employment Opportunity Commission, alleging that DOC forced her to work in a hostile environment. On February 15, 2002, Respondent, alleging the same facts, commenced a legal action against DOC in the United States District Court, Southern District of Florida, Case No. 02-60236-CIV. As part of the federal litigation, DOC filed a motion for summary judgment, arguing, in part, that Respondent's complaint failed to claim damages. In response, on March 28, 2003, Respondent, representing herself, filed a lengthy affidavit, to which she personally attested. In the affidavit, Respondent swore to the following statement: I requested assistance from management [following the departure of the other Correctional Probation Specialist from Respondent's office and DOC's failure to fill the empty position], but they refused to assign another Specialist to the office to assist me. As a result I had to work an average of five hours per week extra in overtime without pay to properly supervise this caseload to prevent from being reprimanded, suspended or terminated by [DOC]. I was not paid for this time. The evidence is clear that Respondent did not work overtime, with or without pay. The Correctional Probation Supervisor who directly supervised Respondent at the time testified at the hearing. Obviously not hostile to Respondent, the supervisor testified definitively that during the relevant period in the affidavit--March 2, 2001 through May 9, 2002--she was intimately familiar with Respondent's work, including her itinerary and travel logs. The supervisor testified that Respondent incurred no overtime whatsoever during this period, and this testimony is credited in its entirety. Respondent's sworn statement in the affidavit is false and was false at the time that Respondent made it. Respondent's sole purpose in making this false statement was to deceive the court and show an element of damages that did not, in fact, exist. DOC terminated Respondent on August 1, 2003. She has not since worked in a job that requires certification from Petitioner.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificates as a correctional probation officer and criminal justice training instructor for one year retroactive to August 2, 2003; placing these certificates on probation for two years from the date of the final order; and requiring Respondent to attend an ethics course approved by Petitioner. DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2006. COPIES FURNISHED: Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Faye E. Wright-Simpson
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
The Issue The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be determined is whether Respondent, Larry Beard, violated section 473.323(1)(l), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact Based on the testimony of the witnesses and documentary evidence presented in this proceeding, the following Findings of Fact are found: Petitioner is the state agency charged with regulating the practice of certified public accounting in the State of Florida, pursuant to section 20.165 and chapters 455 and 473, Florida Statutes. At all times relevant to these proceedings, Respondent has been licensed as a certified public accountant by the State of Florida, having been issued license number AC 007921 on September 4, 1979. Respondent’s license is currently listed as “current, inactive,” and expires December 31, 2015. No evidence of any prior discipline against Respondent’s license was offered. On or about November 10, 1994, an Information was filed against Respondent by the State Attorney for the Sixth Judicial Circuit in and for Pinellas County, charging him with six counts: 1) sexual battery, a capital felony; 2) lewd and lascivious act in the presence of a child under the age of 16 years, a second-degree felony; 3) handling and fondling a child under the age of 16 years, a second-degree felony; 4) lewd and lascivious act in the presence of a child under the age of 16, a second-degree felony; 5) lewd and lascivious act in the presence of a child under the age of 16, a second-degree felony; and 6) handling and fondling a child under the age of 16, a second- degree felony. The victim in the criminal proceedings was nine years old. Counts 3 and 4 were nolle prossed. After a jury trial, on October 16, 1996, Respondent was found guilty of Counts 1 and 2. Respondent pled nolo contendere to Counts 5 and 6. On November 1, 1996, Respondent was originally sentenced to life in prison for Count 1 and 40 years in prison for Count 2, to be imposed consecutively. Respondent appealed his conviction and sentence to the Second District Court of Appeal. In Larry Beard v. State of Florida, Case No. 96-4909 (Fla. 2d DCA Mar. 24, 1999), the Second District affirmed the convictions for Counts 1 and 2, but vacated the judgments with respect to Counts 5 and 6, because the trial court failed to renew the offer of assistance of counsel to Mr. Beard at the plea hearing. For the same reason with respect to the sentencing hearing, the sentences for all four counts were reversed, and the case was remanded for resentencing for Counts 1 and 2. The Court directed that Respondent be given the opportunity to withdraw his plea with respect to Counts 5 and 6. On November 24, 1999, Respondent was re-sentenced to the same sentences for Counts 1 and 2. Counts 5 and 6 were nolle prossed. Respondent again appealed the sentencing order to the Second District Court of Appeal. In Larry Beard v. State of Florida, Case No. 2D00-271 (Fla. 2d DCA June 26, 2002), the Second District affirmed the judgment and sentence for Count 1 and found no error in the application of a sexual predator designation. With respect to Count 2, the State conceded that the 40-year sentence was a scrivener’s error (the trial judge orally imposed a 40-month sentence at the sentencing hearing), and the court found that it was imposed based upon an incorrect sentencing scoring sheet. The case was again remanded to the trial court to address the sentence in Count 2. The sentence ultimately imposed for Count 2 is not in the record of this proceeding. Regardless of the changes in sentencing, the fact remains that Respondent was convicted of capital sexual battery in violation of section 794.011(2), Florida Statutes, and a lewd act upon a child, in violation of section 800.04, Florida Statutes (1993). Respondent has been incarcerated within the Florida Department of Corrections since November 7, 1996, and remains incarcerated. On or about January 6, 1998, Respondent requested that his license be placed in a “current, inactive” status. He did not at that time, or anytime thereafter before December 2012, notify the Department that he had been convicted of any crime. Respondent used two other individuals, James Galloway and Penny Loulargous, to assist him in maintaining his license in an inactive status after his incarceration. His address was at different times listed “in care of” these individuals. In December 2012, Respondent wrote to the Department requesting that his address be changed from Mr. Galloway’s address to the Okaloosa Correctional Institution located in Crestview, Florida. Upon receiving the address change request, the Department opened an investigation to determine why he was in prison. However, in June 2013, the investigation was closed, in error, for lack of jurisdiction. In July 2014, correspondence was sent to accountancy licensees whose licenses were in inactive or delinquent status about an amnesty program authorized by legislation passing during the 2014 session. Respondent responded to the Department correspondent with a letter of his own, asking questions regarding the continuing education requirements for attaining active status. As a result, the Department re-opened the investigation that was closed in June 2013. This re-opened investigation led to the charges at issue in these proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Accountancy enter a final order finding Respondent guilty of violating section 473.323(1)(l), Florida Statutes, and revoking his license. DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2015.
