The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
The Issue Whether Respondent committed the offenses of malicious harassment, unlawful battery (two counts), and unlawful entry of a structure (two counts) as set forth in the Administrative Complaint dated October 17, 1997. Whether Respondent has failed to maintain good moral character, and, if so, what disciplinary action should be taken against his correctional officer's certification.
Findings Of Fact Christopher Horne (Respondent), was certified by the Criminal Justice Standards and Training Commission on September 29, 1989, as a correctional officer, and was issued Correctional Certificate Number 70581. Respondent was employed by the Orange County Sheriff's Office, Department of Corrections, as a correctional officer during the period of October 1, 1990, until his termination on November 14, 1997. Patricia Johnson is currently employed with the Orange County Sheriff's Department of Corrections as a correctional officer and has been employed as such for the past twelve years. She is certified by the Criminal Justice Standards and Training Commission as a correctional officer. Johnson first met Respondent in the summer of 1993 at work. They became friends and eventually began dating each other in a boyfriend-girlfriend relationship. This relationship continued for approximately two and a half years, until Johnson made the decision to end it. Johnson told Respondent on New Year's Eve 1995 that their relationship was over. Johnson began dating another man. When Respondent found out that she was dating someone else, he began calling her repeatedly at work and at home. Respondent continued to harass Johnson by calling her late at night and by driving repeatedly past her home at night. This behavior began in January 1996 and continued through August 1996. The Respondent used abusive language when speaking with Johnson. He threatened harm to her date, if he found her with someone. Johnson was afraid of Respondent and was afraid that he might harm her. On July 21, 1996, Respondent went to Johnson's home unannounced and knocked on her door. When Johnson opened the door and saw who it was, she told Respondent to leave. He did not; instead he pushed his way into her home, physically struggled with her, and eventually pushed her onto her bed. Respondent pinned her down with his knees and threatened her. Johnson repeatedly told him to leave her home. Respondent eventually left the house. Johnson reported Respondent's actions to the police. They documented the incident in a report. She told the police that she did not want to press charges against Respondent, but did want someone to talk to him about his actions. The police contacted Respondent and discussed the incident with him, but did not arrest him. On November 10, 1996, at approximately 3:30 a.m., Johnson received a phone call at her house from a person she believed to be her brother. The person told her that he had forgot his keys and asked to be let into the house. A short time later, there was a knock at the door. When Johnson opened the door, Respondent was standing there. He said, "Bitch let me in" and proceeded to push his way into her home. He then grabbed her hair and hit her head against the wall several times. He continued to pull her hair and push her up against the wall. She begged him to leave and told him to stop hitting her. She broke free and ran to her brother's room and started banging on the door. Her bother, Bobby Hunter, came out. Johnson told him that she wanted Respondent out of her house. Her brother asked Respondent to leave. Eventually, Respondent did leave without further physical confrontation. Johnson reported the incident to the police. After investigating the incident, the police completed a report and arrested the Respondent. Respondent was charged with burglary, battery, and aggravated stalking. Respondent pled in circuit court to the misdemeanor charge of trespass to an occupied dwelling and was placed on one- year probation. Respondent was suspended for 10 days from his employment with the Orange County Sheriff's Department of Corrections as a result of his actions involving Johnson. He was later terminated from his employment on November 14, 1997. Respondent is currently not employed as a correctional officer. Respondent's description of the events from January 1996 through August 1996 and on the night of November 10, 1996 is not credible. On December 11, 1992, the Criminal Justice Standards and Training Commission issued an official Letter of Guidance to the Respondent. This prior action by the Commission is an aggravating factor in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission find Respondent guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and it is further RECOMMENDED that Respondent's certification be revoked. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999. COPIES FURNISHED: James D. Martin Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Warren Turner, Esquire 609 East Pine Street Orlando, Florida 32802 A. Leon Lowry, II, 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 Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate Number 151337. Respondent was employed by the Department of Corrections, Lake City Service Center from October 1, 2000 until October 18, 2001. On or about January 27, 2001, Respondent was sitting in the right front passenger seat of his black Ford Mustang in the parking lot of the Ponce de Leon Mall (the Mall) in St. Augustine, Florida. Another man was also sitting in the vehicle. A third man who had been a passenger of the vehicle was walking toward the vehicle from the Mall. Deputy Joey Romer of the St. Johns County Sheriff's Office and Detective Ronald S. Faircloth were working in an off-duty status as security for the Mall. Deputy Romer and his K-9 dog, Justice, approached Respondent's vehicle in the mall parking lot. Justice is trained in narcotics detection. Justice "alerted" to the free air odor of Respondent and to one of the other occupants of the vehicle. That is, Justice "did the full response of sitting down, which is an indication of a drug odor." Justice also alerted to the lower seam of the passenger door where Mr. Buckley had been sitting. Deputy Romer then searched the vehicle and found two small packets of what appeared to be marijuana in a Checker's food bag on the front passenger floorboard. Deputy Romer did not do a field test of the suspect marijuana. Based upon his experience, Deputy Romer concluded that the suspect substance was marijuana. Detective Faircloth initially stayed back from the vehicle for officer safety reasons. He saw Deputy Romer place Respondent under arrest. Detective Faircloth then approached the vehicle. Respondent admitted to Deputy Romer that the suspect substance was marijuana and that it was his. In the presence of both Deputy Romer and Detective Faircloth, Respondent identified himself as a corrections officer. In the presence of both Deputy Romer and Detective Faircloth, Respondent asked if there was any way they could just dump out the marijuana because it would affect his job. Deputy Romer then arrested Respondent. Respondent was charged with possession of less than 20 grams of marijuana, a misdemeanor. On January 28, 2001, Respondent filed an incident report indicating that he was arrested on January 27, 2001, for possession of less than 20 grams of marijuana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order revoking the corrections certificate of Respondent, James C. Buckley. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 15th day of July, 2003.
The Issue The issues to be determined in this case are whether Respondent has failed to maintain the qualifications required for a correctional officer pursuant to Section 943.1395(7), Florida Statutes (2006),1/ and Florida Administrative Code Rule 11B- 27.0011(4)(b), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified by the Department as a correctional officer in the State of Florida, having been issued Correctional Certificate #170241. Respondent and Candida Nowlin are engaged and live together. They have lived together since 2002. Ms. Nowlin has two children from a previous relationship and she and Mr. Saria have a child together. At the time of the events giving rise to these proceedings, the couple was under a great deal of stress because of a serious accident involving one of Ms. Nowlin's children. On the evening of November 6, 2006, Mr. Saria and Ms. Nowlin had an argument. She asked him to leave, and he refused. In his anger, he slammed a cordless phone in their home against the kitchen counter. However, there is no competent evidence that he struck or grabbed her, or threw her into a wall. The only competent testimony presented is that he touched her arms in order to move her out of his path as he went to another room in the home, but did not harm her in any way. Ms. Nowlin felt that she and Mr. Saria needed some time apart, so when Mr. Saria refused to leave their home, she went with her young daughter next door to her neighbor's home to call the police. Her neighbor, Ms. Epley, was having a dinner party. She noticed that Ms. Nowlin was crying and she let her use her phone, but was distracted by her hostess duties. She did not remember Ms. Nowlin being injured, and Ms. Nowlin did not tell her that Mr. Saria had beaten her up. Ms. Nowlin called the police from Ms. Epley's home. Two officers came to the home, then-officer Barraclough and Sergeant Spears. They interviewed Ms. Nowlin, Ms. Epley, and Mr. Saria, and arrested Mr. Saria and took him away. After they had removed Mr. Saria from the home, the two officers completed statements from both Ms. Epley and Ms. Nowlin. Officer Barraclough testified that he saw scratches and red marks on Ms. Nowlin's arms. However, his testimony was contradicted by all other witnesses who testified, and is not credited. Sergeant Spears, who did not testify, took Ms. Nowlin's statement. While she was doing so, Ms. Nowlin's mother came to the home. Her testimony, which is credited, is that Ms. Nowlin had no bruises or marks on her arms and that Ms. Nowlin was primarily upset at that point because Mr. Saria had been arrested. The only competent evidence of what happened between Ms. Nowlin and Mr. Saria during their argument is the testimony of the two of them. They both deny vehemently that he struck her or engaged in any unwanted touching. They both insist that they had an argument because of the amount of stress they were under, and that the police were called because Ms. Nowlin felt they needed some time away from each other.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
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
Findings Of Fact The Petitioner testified in his own behalf, admitting that he had failed to answer Question 13, "Have you ever been arrested?" honestly. He stated that he had been embarrassed to put down the fact that he had been arrested. He stated that he had applied for the position as an unarmed security guard with Oxford Security Services thinking that it would be a temporary position. However, since his employment he has been promoted to safety coordinator, salesman and supervisor/operations manager of the company's operations in the Jacksonville area. The applicant was first employed in June of 1979. He stated that he needed to be licensed in order to maintain his present position. The applicant explained his arrest in 1963 and in 1977. His arrest in 1963 was for larceny and arose from taking money belong to the company by which he was employed and purchasing a car with it. The court withheld adjudication and placed the applicant on probation for five years. During that time he married and left the State of Florida in violation of the terms of his probation. In 1977, the applicant was employed in Jacksonville, Florida, as a used car salesman. After a 24-hour sale-athon, the applicant began bar-hopping and ended up in a topless go-go club. His next conscious recollection was waking up in the Duval County jail, where he was advised that he was charged with lewd and lascivious conduct. He had no knowledge of the conduct which gave rise to his arrest. The Duval County court advised the applicant to enter a plea of nolo contendere and be transferred to Miami court for disposition of the applicant's offense of parole violation. The Duval County court sentenced the applicant to two days for lewd and lascivious conduct, during which time he was transferred to the Dade County courts. The charges of violating parole in Dade County were dismissed. The applicant further explained his arrest for passing a worthless bank check. The applicant stated that he had overdrawn his account unknowingly in 1971. He was arrested and paid off the overdraft, and the charge was dismissed. The applicant stated that his employer was not aware of his arrest record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the applicant's application for a Class F, unarmed guard license be denied; however, that the applicant be afforded the opportunity to refile his application with full disclosure, and that in the absence of any other disqualifying grounds said reapplication be approved. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1980. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Wayne M. Chadwick 865 Lane Avenue, #703 Jacksonville, Florida 32205 =================================================================
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2002),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(c), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Odom was a correctional officer working as a sergeant at Century Correctional Institution (Century) in Century, Florida. Jarl Johnson (Johnson) is a correctional officer who was employed at Century while Odom was employed there. Johnson went to the dormitory where Odom was stationed to check equipment. He advised Odom that he would do the head count of the inmates, but Odom indicated that he would do the head count instead of Johnson. Odom took two inmates, who were in the officers' station, with him to do the head count, and the inmates carried flashlights with them while doing the head count. Inmates are prohibited from doing head counts and carrying flashlights. Vera Elliot (Elliot) is a correctional officer, who is employed at Century. On February 14, 2003, she was working a double shift. One of her shifts that day was the same shift on which Odom was working. Elliot observed Odom and two inmates do a head count of the inmates. The two inmates came into the officers' station, while Odom was present. At that time, no inmates were allowed in the officers' station. On that same evening, Elliot saw Odom give a white box containing food to the two inmates. Correctional officers are not allowed to give food to inmates. Gregory Gilliard (Gilliard) is a correctional officer, who was employed at Century while Odom was employed at Century. Gilliard observed an inmate and Odom in the laundry room directly behind the officers' station. The inmate was polishing Odom's shoes. Gilliard also observed another inmate in the officers' station. The doors to the laundry room were open, making the dormitory accessible, which is a breach of security. On May 8, 2003, Jeffrey R. Brooker (Brooker), a correctional investigator for the Office of the Inspector General of the Department of Corrections, interviewed Odom concerning complaints against staff at Century. While under oath, Odom told Brooker that he never allowed inmates to carry flashlights, never gave food to inmates, never allowed inmates in the officers' station, and never allowed an inmate to polish his shoes. These sworn statements were false. Based on the statements given by Odom to Brooker, it is found that Odom knew that his statements were not true. The Commission alleged in the Administrative Complaint that Odom used excessive or unnecessary force on an inmate. The only evidence presented concerning these allegations was hearsay. Subsection 120.57(1)(c), Florida Statutes (2005), provides: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Therefore, no finding is made that excessive or unnecessary force was used by Odom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Richard L. Odom violated Subsection 943.13(7), Florida Statutes, and revoking his certification as a correctional officer. DONE AND ENTERED this 29th day of March, 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 29th day of March, 2006.
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2012.
The Issue Whether Respondent committed the offenses set forth in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on February 23, 1989, and was issued certificate number 03-88-502-07. Respondent was employed as a certified correctional officer by the Broward County Sheriff's Office at the time of the incidents described in the Amended Administrative Complaint. On April 15, 1989, Respondent was operating his automobile on the 67th Street on-ramp to the eastbound lanes of the Palmetto Expressway between 4:00 and 4:30 P.M. Irene Alvarez, Respondent's fiancee, was a passenger in Respondent's automobile. Respondent's automobile, a Toyota Corolla station wagon, was experiencing mechanical difficulties and could not accelerate rapidly. On April 15, 1989, Kayode Eyinfunjowo and Godfrey Brown were travelling together to a soccer game in a Datsun 280-Z that was owned and operated by Mr. Eyinfunjowo. Mr. Eyinfunjowo's car was a two-door hardtop (not a T-top) with darkened windows. When Mr. Eyinfunjowo's vehicle entered the 67th Street on- ramp to the eastbound lanes of the Palmetto Express, Mr. Eyinfunjowo and Mr. Brown first noticed Respondent's vehicle in front of them. Because of the mechanical problems Respondent was operating his vehicle at less than 10 miles per hour. Mr. Eyinfunjowo's vehicle could not pass Respondent's vehicle because the on-ramp was only one lane. As a consequence of the slow rate of speed of Respondent's vehicle and the one lane of traffic on the on-ramp, Mr. Eyinfunjowo was required to drive his car at a much slower speed than he wanted. Once both vehicles were on Palmetto Expressway, Respondent's vehicle continued to travel very slowly in the extreme right hand lane of traffic 1/ and Mr. Eyinfunjowo began to pass Respondent in the adjoining lane of traffic. As Mr. Eyinfunjowo's vehicle began to pass Respondent's vehicle, Mr. Brown rolled down his window, stuck his head and shoulders outside of the car and said something to Respondent. 2/ There is a conflict in the evidence as to what Mr. Brown said. Mr. Brown testified that he merely inquired as to why Respondent was driving so slowly. Respondent testified that Mr. Brown shouted obscenities. This conflict is resolved by finding that the greater weight of the evidence is that Mr. Brown complained to Respondent about being slowed down by his car and made a profane, derogatory comment about Respondent's car. Mr. Brown did not make any verbal threat against Respondent and Mr. Eyinfunjowo did not verbally communicate with Respondent. Neither Mr. Eyinfunjowo nor Mr. Brown displayed any type of weapon during the incident. Respondent testified that Mr. Eyinfunjowo's tailgated him while coming up the on-ramp and repeatedly blew its horn at him, tried to run him off the road. Respondent also testified that the two vehicles were very close together when Mr. Brown shouted at him and that Mr. Eyinfunjowo slammed on his brakes after he passed Respondent. Mr. Eyinfunjowo and Mr. Brown deny that they tailgated Respondent, tried to run him off the road, or slammed on brakes in front of him. The conflict in the evidence is resolved by finding that the more credible testimony establishes that Mr. Eyinfunjowo followed Respondent very closely, blew his horn at Respondent, pulled up close to Respondent's car while Mr. Brown was shouting at Respondent. The more credible evidence is that Mr. Eyinfunjowo did not try to run Respondent off the road and that he did not slam on his brakes after he passed Respondent. After Mr. Brown shouted at him, Respondent did not verbally respond. When Mr. Brown saw Respondent reach for an object, he believed that Respondent was reaching for a weapon and told Mr. Eyinfunjowo to accelerate. Mr. Eyinfunjowo immediately accelerated and began to distance his vehicle from that of the Respondent. The Respondent, who was driving his vehicle at approximately 5 miles per hour, reached with his right hand for a firearm, 3/ removed the firearm from his glove compartment, shifted the firearm to his left hand, and, while steering the car with his right hand, stuck the gun out of the window and discharged the firearm. There is a dispute in the evidence as to whether Respondent shot once or twice. Respondent admits that he shot once. Mr. Eyinfunjowo and Mr. Brown testified that they heard two shots. The greater weight of the evidence and the more credible testimony established that Respondent shot the firearm twice. At the time the shots were discharged, Mr. Eyinfunjowo's vehicle was moving away from Respondent's vehicle and the occupants thereof were very frightened. When the first shot was fired, Mr. Eyinfunjowo's vehicle was between one and two lengths ahead of Respondent's vehicle. When the second shot was fired, Mr. Eyinfunjowo's vehicle was between three and six car lengths ahead of Respondent's vehicle. During this series of events, Mr. Brown's head and shoulders were out of the window. There was also a dispute as to the direction of the shots. Mr. Brown testified that it appeared that the firearm was being aimed at him. Respondent testified that he aimed well to the right of Mr. Eyinfunjowo's vehicle in the direction of a vacant field. The more credible evidence is that Respondent was not attempting to shoot Mr. Brown and that he aimed to the right of Mr. Eyinfunjowo's vehicle. Respondent has had training as a marksman in both his right and his left hand. During his training to become a certified officer, he was qualified as a "Sharpshooter", which is the second highest rating for marksmanship. When Mr. Brown began shouting at the Respondent, Ms. Alvarez who was approximately 2 1/2 months pregnant and had experienced difficulties with her pregnancy, became frightened and began screaming. Respondent testified that he also became frightened and that the only reason he discharged his firearm was to scare off Mr. Eyinfunjowo and Mr. Brown. After the gunshots, Mr. Eyinfunjowo drove away rapidly and stopped on the Palmetto Expressway near 57th Avenue after he saw a Metro-Dade police car. Respondent stopped at this same exit to try to find a telephone to report the incident. As Mr. Eyinfunjowo and Mr. Brown flagged down the police car, Mr. Brown saw Respondent stop his car at a distance and begin to approach them. Mr. Brown testified that Respondent had his gun in hand. Respondent testified that his gun was in the car. The conflict is resolved by finding that Respondent had his gun in his hand when he first saw Mr. Brown after both vehicles had stopped, but that Respondent made no attempt to fire at Mr. Brown or to threaten him with the firearm. Once the police officers were on hand, Respondent identified himself for the first time as a correctional officer. Respondent was not wearing a uniform and he was not driving a marked police car. Respondent cooperated with the police officers at the scene and during subsequent investigation. Although the police officer who conducted the investigation of this proceeding recommended that criminal charges be brought against Respondent, the State Attorney's office declined to prosecute. None of the participants in this incident had been drinking alcohol. April 15, 1989, was a clear, sunny day. Prior to firing his firearm, Respondent did not display his correctional officer badge or attempt to identify himself as an officer. Respondent was not on duty at the times pertinent hereto. Shortly after this incident, Respondent's employment with the Broward County Sheriff's Office was terminated. At the time of the formal hearing, Respondent was operating a restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact contained herein, which finds that Respondent failed to maintain the qualification of good moral character, and which suspends Respondent's certification for a period of one year. DONE AND ORDERED this 30th day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of April, 1992.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon 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 filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
