The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Rule 23-21.03(9)(b) , Florida Administrative Code, the rule under challenge, contains a list of forms to be used by the Commission in parole grant-and-rescind types of proceedings. The particular form which is challenged is PCG-4.4, entitled "Special Commission Action." The Commission on September 7, 1983, extended petitioner's presumptive parole release date (PPRD) by utilizing form PCG-4.4. Petitioner and the Commission agree that invalidation of the challenged rule will not affect petitioner's PPRD. Petitioner does not challenge the method by which Rule 23-21.03(9)(b) , Florida Administrative Code, was promulgated.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character as required by chapter 943, Florida Statutes, and Florida Administrative Code Rule 11B- 27.011, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. (2009).2/ Respondent was certified as a correctional officer by Petitioner on July 8, 2009, and holds Correctional Certificate Number 284876. In February through May, 2010, the time frame relevant to this proceeding, Respondent was employed as a correctional officer at Miami-Dade Correctional Institute ("Miami-Dade CI"). Incident Giving Rise to this Proceeding On or about July 29, 2010, Captain Eric Parrish, a midnight shift supervisor at Miami-Dade CI, convened a meeting of several employees under his supervision. Among those present at the meeting were Respondent and Officer Demetrices Demeritte. The purpose of the meeting was to address rumors regarding alleged sexual activity among staff members while present or on duty at Miami-Dade CI.3/ Ultimately, these rumors were determined to be unsubstantiated. However, at the meeting, Demeritte informed Parrish that Respondent had exposed his penis to her while they both were on duty at Miami-Dade CI. Respondent verbally admitted at the meeting that he did show Demeritte his penis, but stated that she had wanted to see it. Parrish ordered everyone in attendance at the meeting to complete an incident report after the close of the meeting.4/ Consistent with Petitioner's standard practice regarding the completion of incident reports, Parrish requested that the reports be submitted by the end of the shift.5/ This gave the employees approximately four hours to complete their reports. Ultimately, Parrish collected completed incident reports from all in attendance at the meeting, including Respondent. In his incident report, Respondent stated that he and Demeritte had engaged in discussions regarding sexual matters on more than one occasion. Respondent acknowledged that he exposed his penis to Demeritte on one occasion when they had discussed its size, and that upon seeing it, Demeritte took off in her post vehicle. The next day she asked him not to do that again because he was not "her man." Respondent stated that he apologized to Demeritte and considered the matter resolved between them as friends. Based on the information provided in the incident reports, Parrish recommended that Respondent and others be reviewed for disciplinary action. On or about December 6, 2011, Petitioner filed an Administrative Complaint against Respondent, alleging that he had failed to maintain good moral character, as required by section 943.17, by having engaged in acts that constitute indecent exposure pursuant to section 800.03. Violation of section 800.03 is a misdemeanor of the first degree. § 800.03, Fla. Stat. (2009). There is no evidence in the record that Respondent was arrested or prosecuted for, convicted of, or pled guilty or nolo contendere to, a violation of section 800.03. Evidence Adduced at the Final Hearing At hearing, Demeritte testified that while she and Respondent were on duty inspecting the fence line or refueling vehicles or at other posts, Respondent exposed his penis to her on four separate occasions. In doing so, he would tell her to "look" and would watch her while exposing himself. Demeritte testified that on one of these occasions, he stroked his penis. Demeritte testified that she was uncomfortable and offended by Respondent's actions, that she considered his actions vulgar, and that on each occasion, she drove away. After she finally confronted Respondent, he apologized and never exposed himself to her again. The undersigned finds Demeritte's testimony credible and persuasive. Demeritte reported the incidents to the Equal Employment Opportunity Commission. However, not until the July 29, 2010, meeting did she report the incidents to Petitioner. Demeritte claimed that she did not report the incidents due to a "breach of confidentiality." No specific explanation was provided regarding what the breach of confidentiality entailed or why it deterred Demeritte from reporting the incidents before July 29, 2010. At the hearing, Respondent recanted his statement in his July 29, 2010, incident report that he had exposed his penis to Demeritte on one occasion. Respondent testified that the statements in his report were "sarcastic" and that he had needed more time to complete his incident report. However, Parrish credibly testified that near the end of the shift, Respondent told him he was still working on the incident report, but that at the end of the shift, Respondent provided the completed, signed, dated report and did not ask for more time to complete the report. Respondent denied having exposed his penis to Demeritte while on duty, and testified that he previously had performed as a dancer at private functions and that she may have seen his penis under those circumstances. Respondent's testimony on these points was not credible. Consistent with his incident report, Respondent testified that he and Demeritte engaged in discussions of a sexual nature on several occasions. There is no other evidence in the record directly corroborating or refuting this claim. However, the evidence does establish that around the time of the incidents at issue in this proceeding, there was discussion of, and rumors regarding, sexual matters between officers employed on the midnight shift at Miami-Dade CI. Under these circumstances, the undersigned finds credible Respondent's account that he and Demeritte engaged in discussions of a sexual nature. The undersigned does not find credible any claim by Respondent that Demeritte wanted or asked him to expose his penis to her. However, the undersigned finds it plausible that Respondent may not have understood that Demeritte was offended by his actions, particularly if they engaged in discussions of a sexual nature, and also given that she did not tell him, until after the fourth incident, to not expose himself to her. Indeed, once she told him not to expose himself to her, his behavior ceased and he apologized. There is no evidence in the record that Respondent previously has been subject to disciplinary action by Petitioner. Findings of Ultimate Fact Based on the foregoing, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent exposed his penis to Demeritte on four separate occasions, in violation of section 800.03, and that in doing so, he failed to maintain good moral character, as required by section 943.13(7). Respondent's behavior in exposing himself to Demeritte was inappropriate and unacceptable. However, the undersigned finds that the circumstances afoot around the time of Respondent's actions——specifically, discussions and rumors of sexual matters between staff, discussions of a sexual nature between Respondent and Demeritte, and the fact that Demeritte did not tell Respondent to stop exposing himself to her until after he had done so four times——may have created an atmosphere that led Respondent, mistakenly, to believe that such behavior was not a significant departure from the accepted norm on the Miami-Dade CI midnight shift at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order suspending Respondent's correctional officer certification for a period of six months, imposing two years' probation, and ordering Respondent to undergo counseling. DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2013.
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 Case Number 91-8116EC: Whether the Respondent, Fred Peel, violated Section 112.313(6), Florida Statutes: (1) by failing to have complaint review procedures in place in his office as required by Section 112.533(1), Florida Statutes; (2) by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report; and (3) by attempting to charge $5.00 for copy of the arrest report? Case Number 91-8323EC: Whether the Respondent, John Jenkins, violated Section 112.313(6), Florida Statutes, by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report?
Findings Of Fact The Respondents. The Respondent, Fred Peel, is the Sheriff of Washington County, Florida. (Stipulated Fact). Sheriff Peel has continuously served as the Sheriff of Washington County for the past fifteen years. (Stipulated Fact). Sheriff Peel is an elected official. (Stipulated Fact). At all times relevant to this proceeding, Sheriff Peel served as a public officer subject to Section 112.313(6), Florida Statutes. The Respondent, John Jenkins, is a captain with the Washington County Sheriff's Department. (Stipulated Fact). Captain Jenkins has continuously served with the Sheriff's Department for ten years. (Stipulated Fact). Captain Jenkins was appointed by Sheriff Peel pursuant to Chapter 30, Florida Statutes. (Stipulated Fact). At all times relevant to this proceeding, Captain Jenkins served as a public officer subject to Section 112.313(6), Florida Statutes. The Arrest of the Complainant. The complainant, Timothy Hinson, was arrested by a deputy of the Washington County Sheriff's Office on November 26, 1990. Mr. Hinson was charged with driving under the influence, driving while license suspended or revoked and refusal to sign citation. (Stipulated Fact). At the time of his arrest, Mr. Hinson was intoxicated. Mr. Hinson's speech was slurred, his appearance was disheveled and his ability to understand verbal communication was poor. After being arrested and transported to the Washington County jail, Mr. Hinson made profane and abusive threats addressed to the arresting deputy and the "Sheriff". Mr. Hinson threatened to have the "Sheriff" removed. Mr. Hinson did not know who the Sheriff was at the time. Mr. Hinson's actions, failed to prove, as suggested by the Respondents, that Mr. Hinson had a vendetta against the Respondents or law enforcement personnel in general. This evidence merely proved that Mr. Hinson was drunk. The parties stipulated that, prior to his arrest on November 26, 1990, Mr. Hinson had been arrested six times since 1983. This evidence failed to prove, however, the Respondents' contention that Mr. Hinson had a grudge or vendetta against the Respondents or law enforcement personnel in general. This evidence suggests that Mr. Hinson has a drinking problem. Mr. Hinson's Effort to Obtain a Copy of His Arrest Record. Just prior to noon on December 28, 1990, Mr. Hinson went to the Washington County Sheriff's offices. Mr. Hinson went to the Sheriff's offices with the intent to obtain a copy of the records related to his arrest on November 26, 1990. (Stipulated Fact). Mr. Hinson was met in the lobby of the Sheriff's offices by Sharon Bellamy, an employee of Sheriff Peel. Mr. Hinson informed Ms. Bellamy that he wanted a copy of his arrest record. Mr. Hinson informed Ms. Bellamy that he needed a copy of the documents for his defense. Ms. Bellamy retrieved Mr. Hinson's file from the office where records were kept and brought it to the lobby to make the copies requested at a copy machine located in the lobby. There were two documents in the file that Mr. Hinson requested: the complaint and the arresting report. As Ms. Bellamy began to make a copy of the documents Mr. Hinson had requested, she found a copy of another document that had been mailed to Mr. Hinson that he had not requested. The document was a notice to Mr. Hinson that his Florida drivers' license had been suspended for refusing to take a breath test. Ms. Bellamy began quizzing Mr. Hinson about whether he had received the document. Although Mr. Hinson had in fact received the notice Ms. Bellamy asked him about, he told her he had not and requested a copy of it. Ms. Bellamy continued to ask Mr. Hinson about the notice. The conversation between Mr. Hinson and Ms. Bellamy became more agitated, although the evidence failed to prove why. Pam Miner, the Sheriff's secretary, was in an office next to the lobby. The door opening into the lobby was open and Ms. Miner overheard Ms. Bellamy and Mr. Hinson. Sheriff Peel was sitting in his office, which adjoined Ms. Miner's office. The door opening into Ms. Miner's office was also open and he could also hear the discussion. At some time after Ms. Bellamy began discussing the notice concerning Mr. Hinson's driver's license with him, Ms. Miner went to the door of Sheriff Peel's office and gave him a look which she described as intended to convey to Sheriff Peel that "you need to do something". After Ms. Miner looked into Sheriff Peel's office, he went out into the lobby. Sheriff Peel initially watched what was going on. At some point shortly after Sheriff Peel went into the lobby he asked Mr. Hinson some questions about Mr. Hinson's driver's license. Mr. Hinson informed Sheriff Peel that he had a Maryland driver's license. At some point during the discussion between Sheriff Peel and Mr. Hinson, Mr. Hinson indicated that he was seeking a copy of the documents in his file for his attorney. Sheriff Peel suggested that Mr. Hinson have his attorney get the copies. The discussion between Mr. Hinson and Sheriff Peel became more heated and argumentative. Eventually Sheriff Peel told Ms. Bellamy to "charge him $5.00" and started to leave. Mr. Hinson perceived this comment to mean that he was to be charged $5.00 per page or document. Prior to coming to the Sheriff's office to obtain copies of the documents in his file, Mr. Hinson had telephoned the Sheriff's office and had been told that there was a $2.00 copying charge. Two dollars is, in fact, what the Sheriff's office normally charges for copying documents. Mr. Hinson believed, therefore, that he would be charged $2.00 per document or a total of $4.00 for the documents he had requested. When Mr. Hinson heard the Sheriff indicate that he was to be charged $5.00, he became angry because he believed that Sheriff Peel was suggesting that he be charged $5.00 per copy or $5.00 per page. Such a charge was inconsistent with what he had been previously told about copying charges. Mr. Hinson incorrectly believed that Sheriff Peel was going to charge him the higher rate for copying because he had a Maryland drivers' license and was, therefore, apparently not from Washington County. Mr. Hinson confronted Sheriff Peel by stating that he had been told that the copying charge was only $2.00 a copy. Sheriff Peel, if he had meant to charge Mr. Hinson a total of $5.00 as suggested during the final hearing, did not clarify that he was only going to charge him a total of $5.00 instead of $5.00 per copy as Mr. Hinson apparently believed. The failure to clarify what he meant, and the fact that Sheriff Peel did not know how many documents were actually involved, support the conclusion that Sheriff Peel did not intend that Ms. Bellamy merely charge Mr. Hinson a total of $5.00. Of greater importance, these facts explain Mr. Hinson's confusion and anger. He reasonably believed he was going to be overcharged. Some time after Mr. Hinson confronted Sheriff Peel about the $5.00 charge, Sheriff Peel told Ms. Bellamy not to give Mr. Hinson anything. Mr. Hinson confronted Sheriff Peel, although he did not know at the time that he was the Sheriff, and asked him "what's the problem." Mr. Hinson also asked for the person in charge of "internal affairs", stating that he wanted to file a complaint against Sheriff Peel. Sheriff Peel informed Mr. Hinson that the Sheriff's Office did not have an "internal affairs" department, that he was the Sheriff, and that he would not take a complaint against himself. The Washington County Sheriff's Office has no written policy for handling complaints against personnel. The Washington County Sheriff's Office has an informal, unwritten policy for handling complaints. Sheriff Peel makes the final decision concerning complaints. At some time shortly after Sheriff Peel and Mr. Hinson began to argue, Captain Jenkins came to the door opening to the lobby from the room that he had been in. Initially, Captain Jenkins stood watching the discussion. Because of the smallness of the room, Captain Jenkins was relatively close to Mr. Hinson. After Sheriff Peel informed Mr. Hinson that there was no internal affairs department and that he would not take a complaint against himself, Captain Jenkins stated "I'm internal affairs this week. What's the problem?" or a statement to that effect. Although Captain Jenkins testified that he made the comment to try to diffuse the situation by injecting some humor into the situation, the weight of the evidence does not support this explanation. The weight of the evidence supports a conclusion that the comment was made in a snide and sarcastic manner. Mr. Hinson was being rude and confrontational. Sheriff Peel and Mr. Hinson were engaged in a somewhat heated argument. Mr. Hinson was obviously angry. To make such a statement to a person in this type situation evidenced a failure to exercise good judgement. The statement was intended to rebuke and insult Mr. Hinson. Mr. Hinson demanded that Captain Jenkins identify himself, which he did. Mr. Hinson told Captain Jenkins that he wanted to file a complaint against Sheriff Peel. Captain Jenkins told him that he would not take a complaint against the Sheriff. Captain Jenkins told Mr. Hinson that it would be better if he left the office. It was apparent to Mr. Hinson that nothing more could come of the confrontation with Sheriff Peel and Captain Jenkins. Sheriff Peel had ordered that nothing be given to Mr. Hinson. Sheriff Peel and Captain Jenkins had refused to take a complaint. It had been suggested that he leave. Mr. Hinson felt intimidated. Captain Jenkins is 6'1" and weighs approximately 225 pounds while Mr. Hinson is slightly built in comparison. There was nothing to be gained by continued argument and, therefore, Mr. Hinson left. Mr. Hinson was not intoxicated or taking medication at the time of his visit to the Sheriff's offices. Mr. Hinson's attitude and demeanor with Ms. Bellamy was defensive and confrontational. Mr. Hinson's displeasure over his arrest and his attitude were perceived as rudeness by Ms. Bellamy. Although Mr. Hinson did not yell or use profanity, as described by Ms. Bellamy, Mr. Hinson "had an attitude". These findings are based in large part upon the testimony of Ms. Bellamy, Pam Miner (the Sheriff's secretary) and David Corbin, the Director of Washington County Parks and Recreation. Mr. Corbin was in the lobby during the confrontation. Although Ms. Bellamy and Ms. Miner are employed by Sheriff Peel, and the fact that Ms. Bellamy was not totally candid in her testimony, the crucial elements of the testimony of the Respondents and these witnesses were consistent. It is difficult to categorize the degree of Mr. Hinson's rudeness. All of the witnesses agreed Mr. Hinson was rude and confrontational. His rudeness and attitude were not, however, so severe that Ms. Bellamy did not believe that she could handle Mr. Hinson. Nor did Ms. Bellamy ever feel threatened by Mr. Hinson. She did not request any assistance from Sheriff Peel or Captain Jenkins, both of whom were in adjoining offices. Nor was Mr. Hinson's attitude and treatment of Ms. Bellamy sufficiently troublesome to cause Captain Jenkins, who could hear the discussion between Ms. Bellamy and Mr. Hinson, to come out to assist Ms. Bellamy until after Sheriff Peel had intervened. Finally, Ms. Bellamy left the lobby during the confrontation to prepare to go to lunch, not something that would be expected of someone witnessing an overly serious confrontation. Sheriff Peel and Captain Jenkins did not yell at Mr. Hinson. Nor did they laugh at Mr. Hinson. Sheriff Peel did, however, become angry and argumentative with Mr. Hinson. The situation could have been ended by simply allowing Ms. Bellamy to provide the copies of the documents Mr. Hinson had requested, which had already been made. Captain Jenkins was sarcastic with Mr. Hinson and, to some degree, because of his size, intimidating to Mr. Hinson. Captain Jenkins' comment to Mr. Hinson, although sarcastic, was not threatening. Mr. Hinson, based upon 20-20 hindsight, was not a threat to anybody in the Sheriff's offices. This is not to say, however, that Mr. Hinson should have been taken lightly or that Mr. Hinson's conduct should have been totally accepted and tolerated by Sheriff Peel. Nor can it be concluded that Captain Jenkins should have totally ignored what was going on. Effort to Secure a Special Privilege, Benefit, or Exemption. The weight of the evidence failed to prove that the failure to have a written complaint procedure in place in the Washington County Sheriff's Office was intended by Sheriff Peel to secure a special privilege, benefit or exemption. Mr. Hinson, after telephoning the Florida Sheriff's Association, was informed that he could pick up a copy of the documents he wanted at the Sheriff's offices. Mr. Hinson also could have obtained a copy of the documents he wanted by having someone else, including his attorney, pick them up or by requesting a copy of the documents from the clerk of court's office. The weight of the evidence failed to prove that Sheriff Peel was attempting to intimidate Mr. Hinson into leaving the Sheriff's offices without obtaining a copy of the documents he had requested in order to secure a special privilege, benefit or exemption. Any funds collected for copying by the Sheriff's Office are funds of Washington County. Sheriff Peel has no control or direct use of those funds. The weight of the evidence failed to prove that Sheriff Peel was attempting to charge $5.00 for the copies in an effort to secure a special privilege, benefit or exemption. The weight of the evidence failed to prove that Captain Jenkins' actions were intended to intimidate Mr. Hinson into leaving the Sheriff's offices in order to secure a special privilege, benefit or exemption. At worst, the evidence proved that Sheriff Peel, arguably, could have exercised a little more patience and that Captain Jenkins made a smart remark at an inappropriate time. These actions, in light of Mr. Hinson's attitude and demeanor, do not support a conclusion that Sheriff Peel or Captain Jenkins were attempting to secure a special privilege, benefit or exemption for themselves or others. The actions of all those involved in this situation were emotional reactions to the situation and were not calculated to achieve any particular result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report dismissing Complaint No. 91-42 and Complaint No. 91-43. DONE and ENTERED this 19th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 19th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1-2. 2 3. 3 5. 4 6. 5 7. B. 1 9. 2 10. C. 1 23. Hereby accepted. Conclusion of law. D. 1 28-30. 2 29. 3 30. E. 1 13. 2 36. 3 14 and 23. 4 14-15. 5 14. 6 17 and hereby accepted. 7 See 37. 8 See 37-38 and 40. Ms. Bellamy's relationship to the Respondents has been considered. While it is true that Ms. Bellamy was not totally candid, the weight of the evidence failed to prove that Ms. Bellamy's testimony was materially flawed, especially in light of the testimony of other witnesses. 9-10 Not supported by the weight of the evidence. 11 See 41. The evidence failed to prove that "no reasonable person could have perceived Mr. Hinson as posing such a danger." Such a conclusion can only be made with 20-20 hindsight. 11a-b 38. 11c 19. 11c 31 and 38. 12 20-21 13 21 and see 26. 14 27. 15 28. 16 Not relevant. 17 22. 18 22-24. 19 25. 20 See 31. 21-22 32. The last sentence of proposed finding of fact 22 is not supported by the weight of the evidence. 23 33. 24 34. 25 35. See 35. See 37-40. The last three sentences are not supported by the weight of the evidence. See 25. The Respondents' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 See 11. 3 13-14. 4 15 and 17-19. 19, 21 and 37-38. The allegations concerning whether Mr. Hinson became "loud" are rejected as not supported by the weight of the evidence. See 27. The evidence failed to prove that Sheriff Peel "explained to Hinson that he had a small office" in an effort to explain why he did not have an internal affairs department. The Respondents' suggestion that Mr. Hinson was out of control is not supported by the weight of the evidence. See 31 and 33. The weight of the evidence failed to prove that Captain Jenkins suggested that Mr. Hinson go to the State Attorney's office if he wanted to file a complaint. See 22. The weight of the evidence failed to prove that Sheriff Peel was aware of how many pages were to be copied, that Mr. Hinson left after being told that the charge was $5.00 or that Mr. Hinson was not told to leave. 23 and hereby accepted. 10 16, 18 and 23. 11 45. 12 28-30. See 31. Hereby accepted. See 47. The last two sentences are not relevant. 16 See 24-25, 38-39 and 48. 17 42. 18 See 12. The last sentence is not supported by the weight of the evidence. 19-24 Although portions of these proposed findings of fact are true, the ultimate findings of fact suggested by these proposed facts are not supported by the weight of the evidence. For example, although it is true that Mr. Hinson admitted that he had a bad memory, the essential elements of his testimony were credible. 25 41-47. The last two sentences are not supported by the weight of the evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 William E. Powers, Jr., Esquire Post Office Box 12186 Tallahassee, Florida 32317-2186 Bonnie J. Williams Executive Director Commission On Ethics The Capitol Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987. Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct. The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091. The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500. The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure." The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states: The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary. If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten (10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals). Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest. This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time. Florida Administrative Code Rule 33-3.007(8) provides that: An extension of the 15-day period [to file at the institutional level] will be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file the grievance within the 15- day period. Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be. Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding. Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e. Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.
The Issue The issues for determination are: (1) Whether Petitioner, Deputy Michael Hughes, violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant; and (2) Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, General Order 3-1.1.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: At all times pertinent to this case, Deputy Hughes was employed by the Sheriff's Office as a deputy sheriff. At the time of hearing, Deputy Hughes had over eighteen years' experience with the Sheriff's Office. On January 12, 2002, Deputy Hughes was working as a deputy sheriff and as a Field Training Officer in the Field Training Section of the Pinellas County Sheriff’s Office. He was accompanied throughout his shift by a trainee, Deputy Mark Shorter. At approximately 2:55 a.m. on January 12, 2002, Deputies Hughes and Shorter responded to 5125 Betty Street in St. Petersburg to assist Deputies Michael Pulham and Vance Nussbaum, who were already on the scene of a traffic stop where the driver was suspected of having active warrants for his arrest. Deputies Hughes and Shorter had already responded to two calls at 5125 Betty Street, both involving complaints by neighbors that persons in the house were causing a public disturbance. After the traffic stop, the deputies noticed yet another disturbance occurring in the residence at 5125 Betty Street. The four deputies entered the residence. As the deputies walked in, one of the occupants, later identified as Donald Hillebrand, punched Deputy Hughes in the mouth with his closed fist. The deputies attempted to place Mr. Hillebrand under arrest for battery upon a law enforcement officer. A melee ensued between the four deputies and several occupants of the residence. Donald Hillebrand was subdued, handcuffed, and arrested. Two women who participated in the fight were also arrested. Mr. Hillebrand was then escorted to Deputy Hughes’ cruiser and placed in the rear seat, without the use of a seat belt. Two other arrestees, Lisa Ruthven and Barbara Metzler, were placed in the rear of the Pulham/Nussbaum cruiser for transport. Because several other people were coming out of the residence and the situation remained volatile, the deputies decided they would regroup at a more secure location a short distance from the Betty Street residence to complete their paperwork on the arrests. From the time he was placed in the back of the cruiser, Mr. Hillebrand spewed a stream of racial invective at Deputies Hughes and Shorter in the front. Mr. Hillebrand is white. Deputies Hughes and Shorter are black. Lt. John Bocchichio, the shift commander, met the four deputies at the secure location. He noted that Mr. Hillebrand was screaming "nigger this and nigger that" from the rear of Deputy Hughes' cruiser. While Deputies Hughes and Shorter completed their paperwork at the rear of their cruiser, Lt. Bocchichio opened the door of the cruiser, leaned into the car, and attempted to speak to Mr. Hillebrand in an effort to calm him. Mr. Hillebrand continued yelling and screaming, and eventually spit at Lt. Bocchichio, who gave up and closed the door of the cruiser. Lt. Bocchichio did not tell Deputy Hughes that Mr. Hillebrand spit at him, but he thought Deputy Hughes might have seen the spitting through the rear window of the cruiser. Alex Metzler, another participant in the brawl at the Betty Street residence, rode up to the secure location on a bicycle. He claimed he was merely riding to a store, but the deputies believed he was there to interfere with them. The deputies arrested him, handcuffed him, and placed him in the rear of Deputy Hughes' cruiser along with Mr. Hillebrand. Mr. Metzler was seated on the passenger's side, and Mr. Hillebrand was seated on the driver's side of the back seat. Both men were handcuffed with their hands behind their backs. The cruiser had a plexiglass shield behind the driver's side of the front seat, and a steel cage behind the passenger's side of the front seat. Deputies Hughes and Shorter, with Shorter driving the cruiser, commenced their travel to the Pinellas County Jail facility, located at 144th Avenue and 49th Street in Clearwater. Mr. Hillebrand continued his tirade at both Deputy Hughes and Shorter, calling them "niggers," inviting them to "suck his dick," and offering to perform various sex acts on their mothers. While the cruiser was traveling on 49th Street approaching 144th Avenue, Mr. Hillebrand leaned over to Mr. Metzler’s side of the police cruiser and spit through the steel cage into the face of Deputy Hughes. Deputy Hughes instructed Deputy Shorter to stop the vehicle. Deputy Shorter stopped the cruiser in the left-hand turn lane at the intersection of 49th Street and 144th Avenue, within sight of the jail. After the cruiser was stopped, Deputy Hughes exited the vehicle, walked around the rear of the vehicle and opened the rear driver’s side door. Mr. Hillebrand was lying on the back seat across Mr. Metzler. Deputy Hughes admitted that he was angry at being spat upon, but maintained that his purpose in stopping and exiting the vehicle was to prevent Mr. Hillebrand from spitting on him a second time by securing his seatbelt. Deputy Hughes reached into the back seat of the vehicle in an attempt to make Mr. Hillebrand sit up on his side of the seat. Mr. Hillebrand resisted. Deputy Hughes noted that Mr. Hillebrand was on top of the seat belt buckle and decided that he needed to remove Mr. Hillebrand from the vehicle. Mr. Hillebrand continued to resist, lying back on the seat and using his legs and feet to prevent his removal from the vehicle. Deputy Hughes leaned into the vehicle in order to grasp Mr. Hillebrand's shoulders to gain hold of him. At this point, Mr. Hillebrand agreed to cooperate. He sat up, turned to sit sideways in the vehicle and placed his feet on the ground outside of the vehicle. Mr. Hillebrand then stood up outside the cruiser. Deputy Hughes testified that he thought Mr. Hillebrand was attempting to head-butt him, though he admitted that Mr. Hillebrand's actions were also consistent with the moves that a handcuffed person would have to employ to exit a vehicle. In response to the perceived head-butt, Deputy Hughes struck Mr. Hillebrand in the chest with a forearm strike and followed with a knee strike to the abdomen. Deputy Hughes briefly pinned Mr. Hillebrand against the rear quarter panel of the cruiser, then returned him to the back seat and attempted to fasten Mr. Hillebrand with the seat belt. Deputy Hughes was unable to fasten the seat belt because the buckle had worked its way under the back seat. Deputy Hughes looped the shoulder harness portion of the seat belt over Mr. Hillebrand’s chest and tucked the end of it underneath the seat to give Mr. Hillebrand the impression that the seat belt was properly fastened. Deputy Hughes closed the rear door of the vehicle and returned to his own seat in the cruiser. Deputy Shorter resumed the drive to the Pinellas County Jail, which took no more than two minutes. Mr. Hillebrand was turned over to corrections officers without further incident and charged with two counts of battery on a law enforcement officer (one for punching Deputy Hughes and one for spitting on Deputy Hughes) and one count of resisting an officer with violence. Deputy Hughes admitted that he did not prepare a use of force report as to this incident. His arrest report detailed the brawl at the Betty Street residence, but made no mention of the subsequent stop after Mr. Hillebrand spit on him. After the incident, Mr. Hillebrand's mother filed a complaint alleging the physical abuse of Donald Hillebrand during the course of the arrest. The complaint triggered an investigation by the Inspections Bureau of the Sheriff's Office regarding the incidents leading to the arrest of Mr. Hillebrand and the use of force by Deputy Hughes and the other deputies involved. At the conclusion of the investigation, an Administrative Review Board reviewed the allegations and evidence compiled by the Inspections Bureau and determined that Deputy Hughes had violated the Pinellas County Civil Service Act and the rules, regulations and operating procedures of the Shriff's Office. The Administrative Review Board's memorandum, dated August 3, 2002, set forth the following specific violations: Violate Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.1 (Level Five Violation), 5.15 relating to the Custody of Arrestees/Prisoners, to-wit: Arrestees/Prisoners shall be kept secured and treated humanely and shall not be subjected to physical abuse. The use of physical force shall be restricted to circumstances specified by law when necessary to accomplish a police task. Synopsis: On January 12, 2002, you removed a secured prisoner from the rear of your cruiser while enroute [sic] to the jail and subjected him to physical force, which was not specified by law or necessary to accomplish a police task. Violate Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (Level Three Violation), 3.20, relating to the Use of Force Reporting, to wit: Whenever a member either on or off duty, is required to use physical force against another person, the member shall immediately notify a supervisor of the action taken and complete the necessary documentation for review. Synopsis: On January 12, 2002, you used physical force against another person, but failed to complete the necessary Use of Force Report for review. The Administrative Review Board did not conclude that Deputy Hughes pulled Mr. Hillebrand out of the cruiser for the purpose of abusing him, or that Deputy Hughes used such force as would constitute a violation of state law or the United States Constitution. The Board unanimously concluded that the force utilized with regard to Mr. Hillebrand was unnecessary and served no legitimate law enforcement purpose, thereby violating General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners. The Board found that Deputy Hughes' actions toward Mr. Hillebrand were inappropriate, given that his reason for stopping the car and commencing the chain of events that led to his use of force was to prevent Mr. Hillebrand from spitting on him again. The Board found that Deputy Hughes could have avoided being spit on without pulling Mr. Hillebrand out of the vehicle, and thus that there was no legitimate law enforcement purpose served by his use of force. The Board noted several factors to support its finding. Deputy Hughes stopped the cruiser less than two minutes from the jail, where corrections officers could have taken Mr. Hillebrand out of the cruiser without the use of force. Deputy Hughes could have found something in the cruiser, such as a rain slicker, to place over the cage behind him and block any further spit from the rear of the vehicle. Once the prisoner was secure and in custody, Deputy Hughes' primary duty was to transport him safely to jail without exposing the prisoner, the law enforcement officers, or the public to the risk of further injury. By stopping the vehicle and opening the rear of the caged and locked police cruiser, Deputy Hughes exposed himself, his partner, both prisoners, and possibly the general public to an unnecessary risk of injury. Deputy Hughes' actions created the situation that resulted in the need to use force on Mr. Hillebrand, and those actions were not necessary to accomplish the primary police task of transporting Mr. Hillebrand safely to the jail without further incident or injury. In short, the Board found that Deputy Hughes used appropriate force for the situation, but found that he violated regulations by allowing the situation to develop in the first place. Sheriff's Office General Order 10-2 provides guidelines for imposition of discipline by an Administrative Review Board, including a point system based on the number and severity of violations. The violations found against Deputy Hughes resulted in a cumulative point total of 65 points: 50 points for the violation of General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners and 15 points for the violation of General Order 3-1.3 (Level Three violation), 3.20, relating to use of force reporting. Sheriff's Office General Order 10-2 provides that the point total accumulated by Deputy Hughes allows for discipline ranging from a seven-day suspension to termination of employment. Deputy Hughes received the minimum seven-day suspension. Deputy Hughes appealed only the finding with regard to the violation of General Order 3-1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners. Deputy Hughes did not contest the finding that he violated General Order 3-1.3 (Level Three violation), 3.20, relating to use of force reporting. Deputy Hughes contended that he acted in self-defense to prevent Mr. Hillebrand from continuing to spit on him. This contention was illogical. By opening the rear of the vehicle and manhandling his prisoner, Deputy Hughes made it easier for Mr. Hillebrand to spit on him again. Further, the self-defense contention was beside the point, as the Sheriff's Office did not allege that Deputy Hughes had no right to protect himself. Rather, the Administrative Review Board found that Deputy Hughes chose the worst of several possible methods to prevent Mr. Hillebrand from spitting on him. The essential finding was that Deputy Hughes used poor judgment, not that he used excessive force. Deputy Hughes also contended that the Sheriff's Office was at fault for not equipping his cruiser with restraints designed to prevent prisoners from spitting. Whatever the value of such restraints, their absence did not prevent Deputy Hughes from improvising a protective device from the materials available in his cruiser. Finally, Deputy Hughes pointed to the fact that the Sheriff's office has no rule or regulation prohibiting a deputy from attempting to seat belt a prisoner in the rear of the vehicle to prevent him from spitting through the open portion of the cage. It defies reason to contend that the Sheriff's Office must develop a rule or regulation for every possible condition that may occur in the field, or that an experienced deputy may abandon common sense in the absence of a rule or regulation covering a situation in which he finds himself. The evidence presented at the hearing fully supported the findings of the Administrative Review Board and the penalty imposed upon Deputy Hughes for the violation of General Order 3- 1.1 (Level Five violation), 5.15, relating to Custody of Arrestees/Prisoners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Michael E. Hughes guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in the August 3, 2002, inter-office memorandum and upholding the suspension of Michael E. Hughes from his employment as a deputy sheriff with the Pinellas County Sheriff's Office for a period of seven days. DONE AND ENTERED this 28th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of February, 2003. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 1 Avenue North St. Petersburg, Florida 33701 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
The Issue The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner has worked as a certified nursing assistant at Highland Pines Rehabilitation and Nursing Center in Clearwater for the past six years. A recommendation letter from the Director of Nursing characterizes Petitioner as an excellent, reliable, and trustworthy employee. Petitioner is disqualified from working in a position of special trust as a result of a 1991 conviction for grand theft under Section 812.014, Florida Statutes. Petitioner was also been convicted of petit theft in the same case. Both crimes involved passing forged checks. She was initially given a sentence of four years probation, but was imprisoned in 1992 for violation of her probation conditions. In 1996, Petitioner was found guilty of welfare fraud in violation of Section 409.325(1), Florida Statutes (1995). She was placed on community control for a period of one year, to be followed by three years of probation. A letter from the Department of Corrections indicates that Petitioner’s probation is now scheduled to terminate on April 18, 2000, with a possibility of early termination provided all conditions have been satisfied. Petitioner has not violated the terms of her probation on this conviction. Petitioner testified that her criminal activities were due to “financial difficulties” and drug use. She testified that she now believes herself to be rehabilitated and ready to put her past behind her. Petitioner testified that she has not entered into any sort of structural rehabilitation program or received counseling in connection with her rehabilitation efforts. Her testimony was essentially that she has turned her life around on her own. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on February 17, 1998. The Exemption Review Committee recommended to the District Administrator that the requested exemption be denied. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator concurred with the committee’s recommendation and denied Petitioner’s request by letter dated March 18, 1998. Upon consideration of all available information and the record of Petitioner’s adjudication for felony theft and her current placement on probation for welfare fraud, the District Administrator concluded that, due to the serious nature of the adjudications and her current probationary status, there has not been sufficient opportunity for Petitioner to demonstrate rehabilitation. Petitioner failed to offer any evidence of her rehabilitation, beyond her testimony that she has changed her ways and the fact that she has thus far served her current probation without incident. While several years have passed since the grand theft conviction that compelled disqualification, Petitioner’s subsequent history is also relevant to Respondent’s decision. Petitioner’s conviction in 1996 of welfare fraud certainly provided Respondent with reason to believe that Petitioner had not demonstrated rehabilitation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Children and Family Services enter a Final Order denying Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 19th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 19th day of August, 1998. COPIES FURNISHED: Linda Susan Floyd, pro se 13149 119th Street North Largo, Florida 33778 Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700
