Findings Of Fact The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
The Issue The issue to be resolved is whether Respondent, Dr. Christopher Carter, M.D. (“Respondent” or “Dr. Carter”), was convicted of, pled guilty, or pled nolo contendere to a crime directly related to the practice or the ability to practice medicine, in violation of section 456.072(1)(c), Florida Statutes (2009), and if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of health care professionals pursuant to section 20.43 and chapter 456, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to discipline against medical doctors pursuant to chapter 458, Florida Statutes. At all times material to the allegations in the Second Amended Administrative Complaint, Respondent was licensed as a physician by the State of Florida, having been issued license number ME 82836. On April 19, 2010, the United States Attorney for the Northern District of Florida filed a one-count Information against Respondent, alleging that Respondent knowingly possessed material containing images of child pornography as defined in 18 U.S.C. § 2256(8)(A), namely, “visual depictions of sexually explicit conduct, the production of which involved the use of minors engaging in sexually explicit conduct, having been mailed, shipped and transported using any means . . .” in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). The case was filed in the Gainesville Division of the United States District Court, Northern District of Florida, and docketed as Case No. 1:10CR19 MMP/AK. On May 14, 2012, a Plea and Cooperation Agreement (“Plea Agreement”) was filed wherein Respondent agreed to plead guilty to the charge recited in the Information. He also agreed to cooperate “fully and truthfully with the United States Attorney and his designated representatives . . . including providing complete and truthful debriefings and testimony at grand jury, trial, and as otherwise requested, involving any matter under investigation.” As part of the Plea Agreement, Respondent was advised that he would be required to register as a Sex Offender and keep the registration current in the state of his residence, the location of his employment, and if a student, the location of his school. The Plea Agreement also specifies that, subject to provisions not at issue in this proceeding, any statements, agreements or other evidence provided by Respondent may be used against him in the federal proceeding or any other action. The Statement of Facts filed with the Plea Agreement stated the following: This case is the result of a Peer-to- Peer file sharing investigation initiated by the North Florida Internet Crimes Against Children (ICAC) Task Force. On September 11, 2009, special software was utilized to locate computers sharing images of child pornography utilizing the Gnutella network. One computer offering to participate in the distribution of child pornography had an Internet Protocol (IP) address which corresponded with an Internet Service Provider (ISP) in Gainesville, Florida. A publicly available listing of the files offered for distribution by the computer at the IP address was reviewed. They included sexually explicit file names describing sexual acts with children. In addition to the file names, the unique SHA values were reviewed and confirmed that the files had previously been identified as depicting child pornography. . . .The files identified by their SHA values were examined and observed to be sexually explicit images of minor children engaged in sexual acts. A check of the IP address offering to distribute child pornography showed the same IP had been recorded one hundred and forty- two times between March 5, 2009, and October 28, 2009, offering different child pornography files for distribution. An Internet search for the origin of the IP address found it to be issued to a cable modem subscriber with Bellsouth Internet of Atlanta, Georgia. A subpoena sent to them revealed that the IP had been assigned to an account in Gainesville, Florida. The account contained information identifying the account holder at a residence located at 5818 NW 45th Drive Gainesville, FL 32653. The account holder was identified as CHRISTOPHER SCOTT CARTER. A federal search warrant was obtained for the CARTER residence. Six known video files depicting child pornography were included in the search warrant and identified by their file titles and SHA hash values. The names of the files are included in the Statement of Facts filed in conjunction with the Plea Agreement and need not be repeated here. Suffice it to say that the file titles indicate that the images are of children from one to ten years old portrayed in sexual activity, and some included violent imagery. The Statement of Facts also indicated that computer equipment seized from Respondent’s residence included a Compac Presario desktop computer belonging to Respondent, upon which the file sharing software was confirmed. The forensic examiner was able to locate the SHA values and associated file paths corresponding to the six videos described in the search warrant. On July 21, 2010, an Amended Judgment was filed, accepting Respondent’s guilty plea and adjudicating him of one count of possession of child pornography. Respondent was sentenced to prison for a period of 48 months, followed by supervised release for life. The sentence requires that Respondent register as a sex offender with the appropriate agency in the state where he lives, works, or is a student. Standard Conditions of Supervision include the following: 7. the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except a prescribed by a physician: * * * 9. the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer. * * * 13. as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. The Additional Conditions of Supervised Release imposed by the court include the following: The defendant shall have no unsupervised contact with minor children, except the defendant's own child. The defendant shall not possess any pornographic material, adult or child. The defendant shall relinquish his pilot's license, nor shall he obtain a new pilot's license without the Court's approval. The defendant shall notify any employer of the offense of conviction. The defendant shall not occupy a vocation or volunteer in a position in which he had direct contact with minor children. * * * The defendant shall participate in a program of mental health counseling to include sex offender counseling. The defendant shall register with the state sex offender registration agency in any state where the defendant resides, is employed, carries a vocation, or is a student, as directed by the supervising probation officer. The probation officer will provide state officials with any and all information required by the state sex offender registration agency and may direct the defendant to report to that agency personally for additional processing such as photographing and fingerprinting. * * * The defendant shall not be in the presence of minors, nor have any contact in any form, direct or indirect, including but not limited to, personally, by computer, telephone, letter or through another person, with children under the age of eighteen, without the approval of the probation officer. Any contact must be reported immediately to the probation officer. Respondent reported his plea, as required, to the Board of Medicine. The letter written by Dr. Carter is lengthy and need not be repeated in its entirety. However, Dr. Carter's remarks include the following: I downloaded these horrendous images thinking that my viewing them was invisible and innocuous. However, I now appreciate a larger perspective: that after these perverse images are produced, they circulate in hyperspace indefinitely, so that the victimization is twofold. Following their original exploitation, the victims of child pornography are haunted by the knowledge that these pictures will persist on the internet, to be downloaded and seen by anyone, indefinitely. While our ability to remove the images is limited, we do have the ability to condemn them, to reject viewing them, and to refuse to possess them. This I failed to do. With an appreciation of the coercion involved in producing these horrible images, and the emotional injury of both the production and of having the images circulating indefinitely, I regret having viewed child pornography and I more deeply affirm my decision to avoid this revolting material. Respondent asserted, both in his letter and in his hearing, that he should be able to continue practicing medicine for three reasons: 1) that no activity associated with child pornography occurred at work or was associated in any way with medical practice; 2) that the offense was limited to viewing internet images in his home, and no “hands-on” offense or production or distribution of material was alleged or occurred; and 3) his crime does not endanger patient safety because he does not treat children. The undersigned notes that Respondent indicates in his letter that “some time before a search warrant was served at my residence, I had independently discontinued my use of child pornography and had deleted all such files from my computer.” The last activity involving Dr. Carter’s IP address was one week before the issuance of the search warrant. However, as stated by the Department’s expert witness, Dr. Francisco Calimano, the qualities essential to the practice of medicine include sound judgment and respect for the welfare of others. Respondent’s behavior in possessing and viewing child pornography shows total disregard for one of the most vulnerable segments of our population, and represents the antithesis of what a physician should be. Dr. Calimano’s view of the level of poor judgment exhibited did not change with the knowledge that Dr. Carter had decided to delete the pornographic files of his own accord. The undersigned shares his view. In addition to the serious judgment lapse and breach of public trust involved in Respondent’s behavior, the practical ramifications of the terms of Respondent’s supervised release make the practice of medicine problematic if not impossible. One of those limitations is that Respondent have no contact with children under 18 without a probation officer’s approval. While Dr. Carter indicates that his practice is limited to adults, that factor does not erase the presence of children from the practice setting. As stated by Dr. Calimano, children are brought into hospitals, waiting rooms, intensive care units, and similar practice settings, as patients, visitors, or dependants of patients or visitors. The same can be said of convicted felons. Likewise, the ability to practice without contact with controlled substances is virtually non-existent. In addition, upon his release from prison, Respondent is required to register as a sex offender wherever he lives or works. This status undermines the trust a member of the general public would have in the judgment and integrity of the care giver. Respondent’s conviction has effectively imposed serious practical impediments related to his continued ability to continue practicing medicine, without risking a violation of the terms of his lifetime supervised release. It is found that the crime of possession of child pornography is related to the practice or the ability to practice medicine. Respondent testified that prior to his arrest, he had made the conscious decision to stop viewing child pornography and had deleted the files from his computer. He also testified that he sought treatment and continues to do so. These factors, however, do not go to the actual commission of the offensive acts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent has violated section 456.072(1)(c), Florida Statutes, and revoking his license to practice medicine. DONE AND ENTERED this 26th day of November, 2012, 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 26th day of November, 2012. COPIES FURNISHED: Laura L. Glenn, Esquire Department of Health, Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher Carter, M.D., #20674-017 Federal Correctional Institution Englewood 9595 West Quincy Avenue Littleton, Colorado 80123 Joy Tootle, Executive Director Department of Health Board of Medicine 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Is the Petitioner qualified for licensure?
Findings Of Fact On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1). The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied. DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844 The Petitioner wrote a letter to the Hearing Officer, which was read and considered. Respondent's Proposed Findings of Fact 1-6. Adopted. 7. Rejected, as irrelevant. COPIES FURNISHED: Joselyn M. Price, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, FL 32801 Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.
Findings Of Fact In 1993, Petitioner was 25 years old. Petitioner was employed by Sunland to care for its disabled clients. Petitioner's duties included direct contact with the clients of Sunland. The background screen revealed that on November 9, 1993, Petitioner plead guilty to two counts of battery (domestic violence). The conviction was the result of a physical altercation between Petitioner and Petitioner's live-in boyfriend, during which Petitioner threw an iron at her boyfriend missing him and striking her 3 year-old child. As a consequence of the conviction, Petitioner was fined the minimum amount and sentenced to two years' probation. She was adjudicated guilty. Contrary to Petitioner's testimony, the evidence showed that Petitioner has had at least two other encounters with the criminal justice system. The greater weight of the evidence showed that Petitioner has a problem with controlling her anger and in controlling her violent response thereto. Based on the record in this case, Petitioner has not established by clear and convincing evidence that she will not be and is not a danger to disabled or elderly persons with which she might come into contact and that she has not learned to control her anger and use of physical aggression. The Petitioner is therefore not entitled to an exemption from disqualification from employment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner, Tammie Collins, an exemption from disqualification from employment. DONE AND ENTERED this 11th day of February, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 11th day of February, 1999. COPIES FURNISHED: Steven Wallace, Esquire Department of Children and Family Services Suite 252 2639 North Monroe Street Tallahassee, Florida 32399-2949 Tammie Collins Post Office Box 208 Greenwood, Florida 32444 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Respondent's plea and adjudication of guilt to knowingly receiving child pornography, in violation of Title 18, United States Code, § 2252A(a)(2)(A), relates to Respondent's practice or ability to practice dentistry, violating section 466.028(1)(ll) by violating 456.072 (1)(c), Florida Statutes, and if so, the penalty that should be imposed.
Findings Of Fact At all times relevant to this case, Respondent Gustavo Borges, D.D.S., was licensed to practice dentistry in the state of Florida, having been issued license number DN 14716. Petitioner Department of Health, Board of Dentistry (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Borges. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect the dentist has committed a disciplinable offense. On May 17, 2007, the United States Attorney for the Southern District of Florida filed a one-count Information against Respondent, alleging that, on or about April 29, 2006, Respondent "did knowingly receive child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer; in violation of Title 18, United States Code, Section 2252A(a)(2)(A)." The case was filed in the Miami Division of the United States District Court, Southern District of Florida, and docketed as Case No. 07-20396-CR-MGC.1/ On December 19, 2007, Respondent tendered a plea of guilty and was adjudicated guilty of one count of knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2)(A). Respondent was sentenced to serve seventy-one months in the United States Bureau of Prisons, followed by five years of supervised release, and a $5,000.00 fine.2/ On or about August 7, 2008, Petitioner served Respondent with an Administrative Complaint charging that Respondent, by his plea and adjudication of guilt to knowingly receiving child pornography, in violation of Title 18, United States Code, § 2252A(a)(2)(A), violated section 466.028(1)(ll), Florida Statutes, by violating section 456.072 (1)(c), Florida Statutes. Respondent was released from prison on November 27, 2012. Pursuant to the terms of Respondent's supervised release, he is precluded from committing any crime; unlawfully possessing controlled substances; possessing a firearm, destructive device, or any other dangerous weapon; and must comply with numerous other standard conditions. In addition to the standard conditions of supervision, Respondent is mandated to comply with certain special conditions of supervision that are tailored to the crime for which he was adjudicated guilty. In general, he is mandated to have no unsupervised contact with minors; required to participate in a sex offender treatment program; restricted from the possession of sexually explicit materials; required to maintain a daily log of his computer activity; directed to refrain from accessing via computer any material that relates to the activity in which he was engaged in committing his offense; and is required to maintain full-time, legitimate employment, subject to certain exceptions. Moreover, as a result of his conviction, Respondent is classified as a sexual offender under section 943.0435(1)(a)1.a., Florida Statutes. As such, Respondent has registered as a sexual offender with the Florida Department of Law Enforcement, as required by section 943.0435(11), and must maintain such registration, subject to certain exceptions, for the duration of his life. Respondent, in his Proposed Recommended Order, has conceded that his conviction under 18 U.S.C. § 2252(a)(2)(A) is a crime related to the ability to practice dentistry, in violation of section 456.072(1)(c). Respondent has no prior disciplinary history concerning his dental license. Respondent has provided volunteer dental services both locally and internationally, as well as local social work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Borges guilty of violating section 466.028(1)(ll) by violating section 456.072(1)(c), Florida Statutes, and revoking his license to practice dentistry. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013.
The Issue Whether Respondent failed to maintain good moral character, in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2015), and Florida Administrative Code Rule 11B- 27.0011(4)(a); and, if so, the appropriate penalty.
Findings Of Fact Respondent is a certified corrections officer in the State of Florida. Petitioner issued Corrections Certification No. 320518 to Respondent on December 15, 2014. The Florida Department of Corrections employed Respondent between July 1 and September 30, 2015. Between July 1 and September 30, 2015, the minor child, who was related to Respondent by marriage, resided with Respondent at his residence. Between July 1 and September 30, 2015, the minor child was 12 years of age or older, but younger than 18 years of age. The minor child’s parents each executed documents evidencing their intent that Respondent’s wife, Jessica Emanuel, act as guardian of the minor child. These documents indicated that Ms. Emanuel could enroll the minor child in school, make health care decisions, and make other decisions concerning the minor child’s general welfare. In October 2015, Monica Lange, a case coordinator for the Child Protection Team in the Children’s Advocacy Center, received a referral from the Department of Children and Families in Charlotte County, Florida, concerning the minor child. Ms. Lange testified that she conducted a video interview of the minor child on October 19, 2015, in Fort Myers, Florida (the CPT interview). Ms. Lange credibly testified that when she interviewed the minor victim, the minor victim (who was 17 years old at the time of the interview) did not appear to be impaired, appeared to have the skill set to answer the questions asked, and understood everything that Ms. Lange asked. Ms. Lange also credibly testified that the minor victim understood the concept of being truthful, and was responsive to the questions Ms. Lange asked. The CPT interview revealed the following recollections of the minor victim: Shortly after the minor victim (who was then 16 years old) began living with Respondent and Jessica Emanuel, Respondent and the minor child began consuming alcohol together and engaging in conversations of a sexual nature; Respondent and the minor child thereafter engaged in sexual activity over 30 times in Respondent’s house and truck; The minor child described many of these incidents of sexual activity with detail as to time and location; The minor child stated that Respondent and the minor child engaged in sexual activity with and without a condom; and The minor child stated that the minor child was exposed to a sexually transmitted disease during this time period. After the CPT interview, Ms. Lange contacted Jason Cook, an investigator with the Washington County Sheriff’s Office. Mr. Cook testified that he reviewed the CPT interview, and then called and scheduled appointments with Jessica Emanuel and the minor child’s mother. Based on those interviews, Mr. Cook contacted Respondent, and, on November 2, 2015, interviewed Respondent at Mr. Cook’s office for approximately two hours and 15 minutes. Mr. Cook testified that he provided Respondent with a Miranda warning, informed Respondent that he was not being charged with a crime at that time, and that Respondent was free to leave the interview at any point. The undersigned’s review of the interview confirms Mr. Cook’s testimony. Mr. Cook testified that for the first 40 to 50 minutes of the interview, Respondent’s demeanor was nervous, guarded, and defensive. However, according to Mr. Cook, Respondent later seemed to open up and spoke more freely.2/ Throughout the interview, Respondent stated that he and his wife provided the basic necessities to the minor child, including room and board. Additionally, Respondent stated that the minor child attended school. During the first 40 to 50 minutes of the interview, Mr. Cook testified that when he asked Respondent whether he engaged in sexual activity with the minor child, Respondent stated many times that he was not sure or could not remember. The undersigned reviewed Mr. Cook’s interview of Respondent. During the first approximately 40 minutes of the interview, when Mr. Cook asked Respondent whether he engaged in sexual activities with the minor child, Respondent provided various non-denials of such activity, stating, at various points: he had psychological issues, so he could not give Mr. Cook an honest answer; (b) he did not feel that he had sexual activities with the minor child; (c) he did not know if he had sexual activities with the minor child; (d) he could not believe engaging in sexual activities with the minor child was something he would do; and (e) he did not know if he engaged in sexual activities with the minor child, but it was a possibility. After approximately 40 minutes of the interview, Mr. Cook and Respondent discussed various disciplinary measures Respondent took with the minor child. After this discussion, Respondent stated that he engaged in sexual activities with the minor child. Respondent stated that these allegations were true, and that he was “tired” of trying to remember or think about this subject. Respondent further stated that he did not engage in sexual activities with the minor child more than 30 times, as the minor child reported. Instead, he stated that he engaged in sexual activities with the minor child between 10 and 20 times. Respondent also stated that the local health department prescribed him medication for either an infection or a sexually transmitted disease, but he could not recall which. At multiple times during the interview, Respondent vaguely referred to mental health issues he felt he suffered, including “bipolar schizophrenia.” When pressed by Mr. Cook, Respondent stated that he had not sought treatment for any mental health issues and had essentially self-diagnosed these issues. Respondent has not otherwise presented any evidence of such mental health issues in this proceeding and recanted this self- diagnosis at the final hearing. At the final hearing, Respondent testified that he did not engage in any sexual activity with the minor child. Respondent further stated that if he had engaged in sexual activity with the minor child, he would have been tried and convicted. Respondent testified that the state attorney dropped the charges against him in the criminal case. At the final hearing, Respondent stated that Mr. Cook did not force him to make any statements or admissions during the November 2, 2015, interview. Respondent provided various documents concerning the criminal case demonstrating that the State dismissed criminal charges concerning the same conduct alleged in this proceeding. The undersigned notes that the “Order Dismissing Charges” in the criminal case found that “the State will be unable to prove the charges against the Defendant without the testimony of the alleged victim, and the alleged victim’s testimony has been excluded by the Court because the alleged victim has repeatedly failed to appear for her deposition . . . .” The undersigned also notes that a Subpoena for Telephonic Deposition to be served on the minor victim indicates that the Charlotte County Sheriff’s Office was unable to serve the subpoena, stating, “THIS SUBJECT MOVED OUT IN MARCH, SHE IS HOMELESS LIVING IN THE WOODS SOMEWHERE, NO CONTACT INFORMATION AVAILABLE, WHEREABOUTS UNKNOWN.” The undersigned has considered evidence of the disposition of Respondent’s criminal case in this proceeding. Despite the disposition of the criminal case against Respondent, the undersigned finds that Mr. Cook’s testimony, and the November 2, 2015, interview of Respondent in which Respondent ultimately admits to engaging in sexual activity with the minor child, corroborates the minor victim’s statements in the interview with Ms. Lange that the minor victim engaged in sexual activity with Respondent while Respondent was in a position of familial or custodial authority. The undersigned finds the testimony of Mr. Cook and Ms. Lange to be credible. The undersigned further finds the minor victim’s statements in the CPT interview to be clear, precise, and distinctly remembered. The undersigned further finds that Respondent ultimately admitted to engaging in sexual conduct with the minor victim, as alleged, and that Mr. Cook did not force or coerce Respondent to provide this admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Respondent Taylor L. Landry has failed to maintain the qualifications for good moral character for a correctional officer, established under section 943.13(7), and defined in rule 11B-27.0011(4)(a). It is further RECOMMENDED that Petitioner revoke Respondent Taylor L. Landry’s Corrections Certification No. 320518. DONE AND ENTERED this 24th day of September, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2018
The Issue The issue is whether Respondent violated Sections 943.13(7), 943.1395(6) and (7), Florida Statutes (2003),1 and Florida Administrative Code Rule 11B-27.0011(4)(a), and, if so, what discipline should be imposed.
Findings Of Fact Respondent was certified by the Commission in October 2002. His certification number is 204780. Respondent worked as a patrol officer for the Cape Coral Police Department from October 2002 through September 2003. Respondent was not working as a law enforcement officer at the time of the incident giving rise to this proceeding. He was working in a sales job. Respondent is a large, muscular man. He is approximately six-feet, four inches tall and between 240 and 245 pounds. He was 33 years old at the time of the final hearing. In June 2004, Respondent was living in Tampa with his then fiancée, Leah Bryant. Ms. Bryant’s four-year-old daughter, C.P., was living with them as well. Ms. Bryant was approximately three months pregnant with Respondent’s child at the time. On Saturday, June 12, 2004, Ms. Bryant went to work early in the morning and left C.P. at home with Respondent. C.P. was asleep when Ms. Bryant left. Around noon that day, Respondent was to drop off C.P. with Ms. Bryant’s parents, Michael and Sherry Frazier, in Bradenton, which is approximately half-way between Tampa and the Fraziers’ home in Ft. Myers Beach. C.P. was going to spend several days with the Fraziers. C.P.'s father, who also lived in the Ft. Myers area, was going to pick up C.P. from the Fraziers and keep her for a week with him. After Ms. Bryant left for work, Respondent got up, showered and got dressed. Then, he woke C.P. up, made her breakfast, packed her a bag of clothes for the trip, and ran her a bath. Respondent was sitting on the edge of the tub with his feet in the water while he bathed C.P. He was fully clothed, except for his socks. As Respondent was trying to get C.P. to rinse her hair with a cup of water, she shook the cup at Respondent causing the water to splash out of the cup and soak his shirt. This angered Respondent, and he pulled C.P. over his knee and “gave her a swat” on her buttocks. Respondent only spanked C.P. one time with an open hand. He testified that he did not think that he spanked her that hard, but the force of the spank was significant enough to leave red marks and bruises that, as discussed below, were clearly visible that night. C.P. cried after the spanking, but according to Respondent, she quickly stopped crying and started laughing after he started making “goofy noises.” Respondent then finished bathing C.P. without further incident. Respondent got C.P. out of the bath and helped her get dressed. Respondent then put C.P. into his car and they drove to Bradenton to meet the Fraziers. Respondent and the Fraziers met briefly at a McDonalds in Bradenton. C.P. left with the Fraziers and Respondent drove back to Tampa. After picking up C.P., the Fraziers drove back to their home in Ft. Myers Beach. On the way, they drove by a number of houses that were for sale in the Venice area because the Fraziers were considering moving to that area, which was closer to Tampa where Ms. Bryant, Respondent, and C.P. were living. The Fraziers did not get back to their home in Ft. Myers Beach until 6:30 or 7:00 p.m., which means that C.P. was in a car seat for approximately eight hours, including the time that she was in Respondent’s car from Tampa to Bradenton. The length of time that C.P. was in the car seat may have exacerbated the red marks on C.P.'s buttocks that were left by the spanking administered by Respondent. Shortly after getting to the Fraziers’ house, C.P. was in the bathroom with Lauren, her 13-year-old aunt and Ms. Bryant’s half-sister. Lauren noticed that C.P.’s buttocks had a number of red marks and bruises. Lauren immediately told her mother, Mrs. Frazier. Mrs. Frazier asked C.P. what had happened, and C.P. told her that “Nicky [Respondent] spanked me.” C.P. did not mention any sexual contact by Respondent. Mrs. Frazier immediately tried to call Ms. Bryant, but was unable to get in touch with her until approximately 10:00 p.m. that night. Mrs. Frazier took photographs of the marks on C.P.’s buttocks at approximately 8:00 p.m. The photographs, Exhibit P- D, are not very good quality, but they do show reddish marks all across C.P.’s buttocks. The photographs also show vertical marks along the inside of the cheeks of the buttocks, which look more like a rash than bruises. Mrs. Frazier told Ms. Bryant about the marks on C.P.’s buttocks and told her that she needed to come see them for herself. Ms. Bryant did so. Ms. Bryant arrived in Ft. Myers Beach after 1:00 a.m. on Sunday, June 13, 2004. C.P. was sleeping, but Ms. Bryant woke her up to see the marks on her buttocks and ask her what had happened. C.P. told Ms. Bryant the same story that she told Mrs. Frazier, i.e., that Respondent spanked her. C.P. did not mention any sexual contact by Respondent. Ms. Bryant testified that she spoke again with C.P. about the incident later on Sunday, and that all C.P. told her was that Respondent spanked her. Ms. Bryant further testified that when she left the Fraziers for Tampa on Monday, June 14, 2004, C.P. had not said anything about sexual contact by Respondent to her or anyone else. Mr. and Mrs. Frazier and Lauren all testified in their depositions that on Sunday afternoon, while Ms. Bryant was still at the Fraziers’ home, C.P. alleged that Respondent put "his pee-pee in her butt.” Ms. Bryant’s testimony on this issue is accepted over that of the Fraziers. Indeed, the more persuasive evidence establishes that Ms. Bryant would not have left C.P. and returned to Tampa on Monday had she known of the allegations of sexual abuse. Ms. Bryant's testimony on this issue is consistent with the level of concern that she exhibited for C.P. when she drove from Tampa to Ft. Myers Beach late on Saturday night after learning of the marks on C.P.’s buttocks. Ms. Bryant testified that she first learned of the allegations of sexual abuse when she received a call from Mrs. Frazier on Thursday, June 17, 2004. On that same day, C.P. was picked up from the Fraziers by her father, Steven Parker. C.P. told Mr. Parker the same story that she told the Fraziers, that Respondent spanked her and "put his pee-pee in her butt.” Later that evening, Mr. Parker’s then-fiancée (and current wife), Corin Hill-Parker, talked to C.P. about the incident. Mrs. Parker testified that at her request, C.P. drew a picture that depicted Respondent’s penis touching her butt. That drawing was received into evidence as Exhibit P-E. Ms. Bryant testified that she did not believe that C.P. drew the picture attributed to her by Mrs. Parker. Ms. Bryant’s testimony is corroborated by a comparison of Exhibit P- E to the other drawings done by C.P. (e.g., Exhibit R-3), which, in the undersigned’s view, show far less drawing skill than would be required to draw a penis and butt at the small scale they were drawn in Exhibit P-E. The following day, Friday, June 18, 2004, Mr. Parker and Mrs. Frazier took C.P. to the Estero Island Medical Center to be examined by a doctor. At this point, it had been six days since the incident. The report prepared by the doctor who examined C.P. on that date reflects that there were fading bruises on C.P.’s buttocks, but no injuries to her anus or vagina. The report states that C.P. told the doctor that “Nicky spanked [her]” and that “Nicky put his pee-pee in [her] bottom.” The doctor called the Lee County Sheriff’s Office (LCSO), as he was required to do by state law in cases of alleged child abuse. LCSO dispatched deputy to the doctor’s office. The deputy advised Mr. Parker that LCSO did not have jurisdiction because the alleged incident occurred in Hillsborough County. The deputy told Mr. Parker that he should take C.P. to a hospital in Tampa that evening -- Friday, June 18, 2004 -- for evaluation. Mr. Parker did not take C.P to Tampa until Monday, June 21, 2004. He did not take C.P. to a hospital for evaluation, but rather took her to the Tampa Police Department (TPD) to file a report. The report was taken by Sgt. Jonathan Gamson. Mr. Parker gave Sgt. Gamson the photographs of C.P.’s injuries taken by Mrs. Frazier, as well as the picture that C.P. allegedly drew of Respondent’s penis and her butt. Mr. Parker told C.P. to tell Sgt. Gamson what Respondent did to her, and she told him that Respondent spanked her and "put his pee-pee in her butt.” Sgt. Gamson also took a sworn statement from Mrs. Frazier, who had accompanied Mr. Parker and C.P. to Tampa. Sgt. Gamson turned the case over to TPD’s sex crime division, namely Detectives Josaphine Baxter and Sonja McCaughey. Detective Baxter referred C.P. to the Hillsborough County Child Protection Team for a physical evaluation. She also referred C.P. to the Children’s Justice Center for a “forensic interview.” The physical examination was conducted by nurse Tamika Harris on Thursday, June 24, 2004. C.P. told Ms. Harris that Respondent “put his pee-pee in her butt.” Ms. Harris did not observe any evidence of the alleged sexual abuse, such as injury to C.P.’s anus or vagina. On this point, Ms. Harris’ report states that “the physical findings from today’s examination neither supports nor refutes allegations of child sexual abuse.” The “forensic interview,” which also occurred on June 24, 2004, was conducted by Jennifer Miller. Ms. Miller has extensive training and experience in interviewing children, including children that are victims of abuse. The interview was videotaped and was conducted by Ms. Miller according to a protocol designed to ensure the reliability of the child’s statements For example, the protocol included asking open-ended, non-leading questions. Respondent did not take issue with the methodology used by Ms. Miller. During the interview C.P. told Ms. Miller that Respondent “put his pee-pee in her butt” while they were both naked in the bath together. She also told Ms. Miller that Respondent spanked her while she was in the bath. C.P. described the spanking and the alleged sexual abuse in the same manner, i.e., “like a stinky fish.” As detailed in the Order on Motion to Admit Statement of Child Victim entered on this date, C.P.’s videotaped statements are not found to be sufficiently reliable to satisfy the requirements of Section 90.803(23), Florida Statutes (2006). The statements are, therefore, hearsay. Detective Baxter had Respondent arrested on the evening of June 24, 2004, for child abuse and sexual abuse notwithstanding Ms. Harris’ report that her physical examination of C.P. did not support the allegation of sexual abuse. Her decision to have Respondent arrested was based upon C.P.’s statements to Sgt. Gamson, Ms. Harris, and Ms. Miller about the alleged abuse, Mrs. Frazier’s sworn statement, the drawing allegedly made by C.P., and the photographs taken by Mrs. Frazier on the night of the incident showing marks on C.P.’s buttocks. Respondent waived his Miranda rights and consented to be interviewed by Detective Baxter on two occasions. During the interviews, Respondent admitted that he spanked C.P. in the bath, but denied that he “put his pee-pee in her butt” or otherwise sexually molested her. He denied that he was naked while he was bathing C.P. The story that he gave during the interviews was consistent with his testimony at the final hearing. At one point between the interviews, Respondent stated to Detective McCaughey, “oh, it happened alright,” or words to that effect, in response to her statement that he should step up and take responsibility for his actions if he did what C.P. had alleged. Respondent credibly testified at the final hearing that he did not recall making that statement, and that even if he did, the statement must have been taken out of context because he would not admit to something he did not do. Respondent’s testimony on this point is consistent with his repeated denials during the interviews with Detective Baxter. Respondent was not prosecuted for the crimes for which he was arrested. He was never charged with sexual battery, and the child abuse charge was “nol prossed.” Respondent and Ms. Bryant are no longer together. They split up shortly after the incident, and she recently married someone else. Ms. Bryant now lives in Delray Beach. She has primary custody of C.P. and her and Respondent’s son, J.W., who was born in November 2004. After this incident, the Parkers filed several abuse reports against Respondent and Ms. Bryant relating to C.P. The reports were investigated by the Department of Children and Family Services and found to be without merit. There is a custody dispute pending between Mr. Parker and Ms. Bryant in which Mr. Parking is seeking custody of C.P. as a result of the incident giving rise to this case. That action, which was initiated after the incident, has not been actively pursued by Mr. Parker. Neither he nor Ms. Bryant was sure of the status of the case. Respondent sees his son regularly, and he has a good relationship with Ms. Bryant. Respondent has had no contact whatsoever with C.P. since the incident. Ms. Bryant testified that C.P. rarely mentions the incident. Mrs. Frazier and Mr. Parker testified that C.P. has stated that she is afraid of Respondent and that she remembers that he hurt her, which is consistent with the parties’ stipulation that C.P.’s participation at the final hearing may cause her severe emotional or mental harm.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 22nd of January, 2007.
