The Issue The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, 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 29th day of July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on May 3, 1985, and issued certificate number 19-85-502-01, which she still holds. On January 31, 1990, Respondent was employed by Metro-Dade County as a correctional officer and held the rank of corporal. She had been employed as a Metro-Dade County correctional officer for the previous five years. On January 31, 1990, Respondent reported to Mount Sinai Medical Center (Center) in Miami Beach, Florida for a biannual physical examination required by her employer. Respondent had approximately two weeks advance notice of this examination. At about 9:18 a.m., in a private area of the Center, as part of her examination, Respondent urinated into a sterile urine sample cup that had been provided by the Center. She then delivered the cup containing her urine sample to Phyllis Miller, an employee of the Center's laboratory. Miller immediately capped the sample cup and labeled it with bar code number 417002 and the laboratory reference number 83278, thus making it uniquely identifiable. At about 4:14 p.m., the sealed sample cup containing Respondent's urine was delivered to Toxicology Testing Services' (TTS's) laboratory in Miami and placed in secure storage. At about 8:00 p.m., TTS laboratory employee Monica Hernandez retrieved the sample cup. Hernandez dispensed a portion of the urine sample from the cup and then performed an initial chemical screen to determine if there was evidence of any controlled substances or their metabolites in the urine. On March 8, 1990, at about 5:00 p.m., a portion of the remaining urine in the cup was dispensed and a confirmation analysis of the urine was performed. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered or adulterated since the initial collection of the urine sample. Respondent's urine was analyzed by gas chromatography-mass spectrometry, an extremely reliable confirmatory testing method. This confirmatory testing revealed the presence of benzoylecgonine in Respondent's urine in a concentration of 588 nanograms per milliliter. Benzoylecgonine is a metabolite that is produced when cocaine is introduced into the body. Cocaine is the only substance known to produce benzoylecgonine. The results of the testing of Respondent's urine sample were consistent with, and indicative of, Respondent's voluntary ingestion of cocaine sometime within a two month period prior to giving the sample. 2/ At the time of the final hearing in the instant case, Respondent was no longer employed by Metro-Dade County as a correctional officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of her unlawful use of cocaine on or about January 31, 1990; and (2) revoking her certification, based upon such a finding. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of December, 1991. STUART M. LERNER 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 27th day of December, 1991.
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his physical disability, and if so, to what relief is he entitled.
Findings Of Fact Petitioner began working as a correctional officer at Franklin Work Camp, a facility operated by Gulf Correctional Institution, in April of 1994. At that time, he had no physical condition which would interfere with his ability to perform the duties of a correctional officer. A correctional officer's principle duties include being responsible for the supervision, custody, care, control and physical restraint of inmates when necessary. A correctional officer must be able to sit, walk, stand, bend, stoop, squat, kneel, run, lift, carry and drag heavy objects (such as an inmate). A correctional officer is subject at all times to assignment at any one of several security posts. Whatever the circumstances, the officer must be willing and able to perform the duties and follow the post orders of an assigned post without physical limitation. There are assignments which may not require an officer to perform all of the duties of a correctional officer on a daily basis. However, there always is the possibility that an emergency may require an officer to perform any or all of those duties. Almost all posts require prolonged standing, and running as needed. Respondent has established an alternate duty policy for employees which provides as follows in pertinent part: GENERAL POLICIES AND GUIDELINES A. A Department of Corrections employee who sustains a job-connected injury or illness that results in a temporary partial disability shall return to the work setting if the prognosis from the approved physician reasonably indicates a future return to alternate duties and the employee is able to perform some meaningful work. Employees with non-job connected injuries or illnesses shall not be considered for alternate duty. * * * Individuals employed in a Certified Officer's position must be prepared and able at all times to perform all the duties of an Officer. In keeping with that philosophy, if approved for [a]lternate [d]uty, individuals employed in the Certified Officer's position shall be temporarily assigned to non- Certified Officer duties for the period of time that are determined to have a temporary- partial disability by the Division of Risk Management. In no case shall Certified Officer duties be performed by an alternate duty employee. * * * PROCEDURES General Provisions [1.] When an employee is being considered for [a]lternate [d]uty, the Servicing Personnel Office and Appropriate Authority will determine the alternate duties to be performed. 2. These tasks shall be some type of work that is beneficial to the Department and consistent with the employee's disability. Use of Alternate Duty 1. In accordance with Chapter 60K- 5.012(1)(d), F.A.C., an employee who sustains a job connected temporary-partial or temporary-total disability shall be considered as a candidate for alternate duty if the prognosis from the approved physician indicates a future return to full duties within a reasonable amount of time and the employee can perform some type of work. Alternate duty shall be approved by the Appropriate Authority for a period not to exceed 90 calendar days. However, an extension of up to an additional 90 calendar days may be approved by the Appropriate Authority if there is a medical statement from the approved physician indicating the employee's current medical condition and prognosis for full recovery. An employee may be approved for alternate duty beyond 180 [calendar days], but no more than 365 calendar days with the approval of the Regional Director or appropriate Assistant Secretary. Respondent does not have a policy establishing "light duty" positions for correctional officers with non-work related injuries or illnesses or with permanent/chronic disabilities. Petitioner claims that a doctor diagnosed him as having osteoarthritis of the left knee in March of 1995. There is no evidence indicating that Petitioner's alleged illness was or is related to his employment as a correctional officer. Petitioner testified that Dr. Nina Camperlengo at the Veteran's Administration Clinic in Tallahassee, Florida, was his treating physician for osteoarthritis in 1996. According to Petitioner, Dr. Camperlengo recommended that Petitioner use a cane to relieve the pressure on his knee in June of 1996. Petitioner told, Tom Smith, the officer in charge at Franklin Work Camp, about Dr. Camperlengo's alleged recommendation. Mr. Smith informed Petitioner that he would not be allowed to enter the compound while using a cane. Petitioner continued to work at the work camp facility, without the cane, until June 26, 1996. Petitioner took annual leave between June 26 and July 5, 1996. Before he returned to work, Petitioner called the personnel office at Gulf Correctional Institution. During this conversation, Petitioner advised Paul Herbert, a personnel officer, that he had to use a cane and that he would be taking one with him when he reported for work the following Monday. Mr. Herbert stated that Petitioner could not work in the compound if he needed a cane. Mr. Herbert told Petitioner that before he could return to work, he would have to furnish Respondent with a physician's statement clarifying Petitioner's medical condition and any physical limitations necessitated by that condition. Later that day, Petitioner's personnel office gave him a physicians' statement form and a correctional officer position description to take to his physician. Petitioner had an office visit on or about July 8, 1996 with Dr. Camperlengo. Petitioner testified that the doctor used the physician's statement form to outline the restrictions she felt were necessary due to Petitioner's condition. He furnished a copy of the physician's statement to Respondent. The statement included the following restrictions: (1) no prolonged standing; (2) no running; (3) no physical force to be used by or against patient; and (4) needs to use cane. Limitations like the ones imposed by Dr. Camperlengo would make it impossible for Petitioner to perform the duties of a correctional officer. Respondent appropriately informed Petitioner that he could not return to work until the medical restrictions were lifted by a doctor. A letter dated July 8, 1998, advised Petitioner that Respondent was placing him on leave for a non-work related illness, from June 26, 1996, through September 18, 1996. Petitioner was entitled to this leave pursuant to the Family and Medical Leave Act of 1993. Respondent's letter informed Petitioner that he would have to furnish Respondent with a doctor's statement of release, returning Petitioner to his regular duties without limitations, when he returned to work. On September 17, 1996, Petitioner provided Jerry Keel, Personnel Manager at Gulf Correctional Institution, a note indicating that his condition had not changed and would not likely change in the future. Petitioner's note stated that he needed a cane to ambulate. Petitioner also furnished Mr. Keel with a note from Second Lieutenant Smith, a physician's assistant assigned to Tyndal Air Force base, limiting Petitioner's return to full duty. According to the note from Second Lieutenant Smith, Petitioner needed to use a cane for ambulation, secondary to pain. Additionally, Second Lieutenant Smith's note stated that Petitioner's condition was chronic but that he could return to work provided he used his cane and was not forced to stand for prolonged periods of time. In a letter dated September 18, 1998, Petitioner stated that he could perform his duties but that he still needed to use a cane to walk. He requested that Respondent afford him the opportunity to work with an accommodation for his handicap or place him in another job assignment. Respondent did not allow Petitioner to return to work on September 19, 1998, because he did not provide a medical release stating that he could perform his duties without physical limitation. Respondent did not request an extension of his medical leave. By letter dated October 11, 1998, Al Solomon, as Acting Superintendent of Gulf Correctional Institution, sent Second Lieutenant Smith a letter asking for clarification of his earlier note. Specifically, Mr. Solomon inquired as to what, if any, physical limitations would prevent Petitioner from performing his duties as a correctional officer. Second Lieutenant Smith did not respond to Mr. Solomon's letter in writing. In a telephone conversation, Mr. Keel informed Second Lieutenant Smith that his response to the written inquiry had to be written, as well. Respondent did not receive a written response from Second Lieutenant Smith prior to Petitioner's dismissal. A copy of Dr. Camperlengo's progress notes dated October 17, 1996, states as follows in its entirety: Mr. David Kelly was seen today in clinic for his ongoing medical conditions. He still requires a cane for ambulation. Respondent notified Petitioner by letter dated November 20, 1996, that charges were being brought against him which could result in his dismissal. Specially, Respondent charged him with inability to perform his duties and/or excessive absenteeism. The only medical information available to Respondent at that time indicated that Petitioner had a chronic condition which limited his ability to perform his regular duties due to a non-work related injury. The letter advised Petitioner that Respondent had conducted a job search and found no other position available for which he was qualified. At Petitioner's request, Respondent conducted a predetermination conference on December 6, 1998. Petitioner did not present any additional information indicating that his medical condition had improved or would improve so that he could perform, without limitation, the duties of a correctional officer. H.D. Alford, Superintendent of Gulf Correctional Institution, dismissed Petitioner from his employment effective December 10, 1998. Petitioner made no independent effort to identify another position with Respondent for which he would have been qualified. Respondent attempted to find Petitioner another position within the agency's Region One area, but there were no position available to match his qualifications. Petitioner received unemployment compensation for a while. He then sought outside employment and received a job offer. He did not accept the job because he hoped to return to work with Respondent. On April 10, 1997, Respondent received a handwritten note from Second Lieutenant Smith stating that the use of a cane is incompatible with the position description for a correctional officer. Petitioner is able to golf and walk for exercise one or two times a week. He personally does not feel that his osteoartritis is a serious condition. He believes that he has always been physically able to perform a correctional officer's duties. However, Petitioner feels more comfortable when he has the cane to relieve pressure on his knee in case he needs such relief. According to Petitioner, his ability to walk or stand for long periods of time depends on the weather and his level of activity. Petitioner did not present the testimony of a medical expert to establish the following: (1) the exact nature and severity of his disability; (2) the duration or expected duration of the impairment; or (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission On Human Relations enter a Final Order dismissing Petitioner's Charge of Discrimination. DONE AND ORDERED this 17th day of August, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1998. COPIES FURNISHED: S. Russell Scholz, Esquire Rish and Gibson, P.A. Post Office Box 39 Port St. Joe, Florida 32457 Ernest L. Reddick, III, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Conclusions The Collier County Sheriff agreed that he had a duty to protect business invitees to the jail from known dangerous inmates. There is no dispute that Rodrigus Patten was known to be dangerous by the Sheriff, through the actual knowledge of his own staff and through the actual knowledge of the Prison Health Services staff, the private contractor that provided mental health services and employed Vickie Freeman, the jail’s mental health counselor. On the issue of negligence, the Restatement (Second) of Torts § 319 (1965) provides that: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. In Nova University v. Wagner, 491 So. 2d 1116 (Fla. 1986), the Florida Supreme Court accepted Section 319 as an applicable statement in Florida of traditional tort principles. In Nova, the operator of a residential rehabilitation program that accepted ungovernable and emotionally disturbed delinquent children that exhibited, on numerous occasions, a propensity for physical violence toward younger children was held to have a duty to exercise reasonable care to avoid harm to the general public. 491 So. 2d at 1117. The Restatement (Second) of Torts § 496B describes express assumption of the risk as follows: A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy. The facts do not support any claim that Dr. Hoyer agreed to relieve the Sheriff of his duty of care by expressly assuming the risks. While certain risks were inherent in the job Dr. Hoyer was performing, there is no evidence, even in the testimony of Ms. Freeman, that he rejected proposed safety measures and absolved the Sheriff of any responsibility for his negligence. See, e.g., Mazzeo v. Sebastian, 550 So. 2d 1113 (Fla 1989). Therefore, whether the Sheriff breached his duty depends on whether Dr. Hoyer impliedly assumed the risks. In Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977), the Florida Supreme Court abolished the use of the defense of implied assumption of the risk as a total bar to recovery of damages and, instead held that it was merged into the defense of contributory negligence, as defined in the Restatement (Second) of Torts, § 466 (1965). The Restatement (Second) of Torts, § 466 (1965) describes contributory negligence as follows: § 466 Types of Contributory Negligence The plaintiff’s contributory negligence may be either an intentional and unreasonable exposure of himself to danger created by the defendant’s negligence, of which danger the plaintiff knows or has reason to know, or conduct which, in respects other than those stated in Clause (a), falls short of the standard to which the reasonable man should conform in order to protect himself from harm. The legal conclusion must be that, in effect, even assuming that the Sheriff’s assertion that Dr. Hoyer can be implied to have assumed the risk of interviewing Mr. Patten under dangerous circumstances is correct, the comparative negligence of each party must be apportioned, as it was by the jury. Resolving any doubts in favor of Sheriff Hunter, the jury found, as I do, that the Sheriff was at least, if not more, negligent than Dr. Hoyer. I do not recommend that more fault be apportioned to the Sheriff than the jury did solely because the amount of the award, when reduced by 50 percent, is sufficiently close to the estimated economic loss. ATTORNEY’S FEES AND LOBBYIST’S FEES: The Claimant’s attorney’s fees are 25 percent plus costs, consistent with Section 768.28(8), Florida Statutes. Lobbyist’s fees are an additional five percent of any award, or $56,452.13 for the full amount of this claim bill. OTHER ISSUES: The Florida Sheriff’s Self-Insurance Fund allocated $3.5 million to Collier County for claims in the 2001 fiscal year. Of that, at least $1.2 million remains available for an award of this claim bill. LEGISLATIVE HISTORY: This is the second year that a bill has been filed on behalf of this Claimant. During the 2007 session, SB 42 died in the Committee on The Special Master on Claim Bills on May 4, 2007. RECOMMENDATIONS: For the reasons set forth above, I recommend Senate Bill 28 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Susan Bucher Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law
