09-003743PL Criminal Justice Standards And Training Commission vs. Antonio R. Saria Status: Closed Recommended Order on Tuesday, November 24, 2009.

Summary: Petitioner failed to demonstrate that Respondent committed a battery, thereby failing to maintain good moral character. Recommend that the Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-3743PL

)

ANTONIO R. SARIA, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 12, 2009, a duly-noticed hearing was held by

means of video teleconferencing with sites in Pensacola and

Tallahassee, Florida, before Administrative Law Judge Lisa

Shearer Nelson, assigned by the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jeremy Early, Esquire

5234 Willing Street

Milton, Florida 32570

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondent has failed to maintain the qualifications required for

a correctional officer pursuant to Section 943.1395(7), Florida

Statutes (2006), 1/ and Florida Administrative Code Rule 11B-

27.0011(4)(b), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On December 12, 2008, the Florida Department of Law

Enforcement (FDLE or the Department) issued an Administrative

Complaint against Respondent, Antonio Saria, alleging that he

violated Section 943.1395(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.0011(4)(b) by committing a

battery on Candida Nowlin by touching or striking her against her

will, and did "unlawfully and intentionally harass . . . Candida

Nowlin, and thereby hinder, delay, prevent, or dissuade [her]

from reporting to a law enforcement officer or judge the

commission or possible commission of an offense or a violation of

a condition of probation, parole, or release pending a judicial

proceeding." On January 7, 2009, Respondent disputed the

allegations in the Administrative Complaint and requested a

hearing pursuant to Section 120.57(1), Florida Statutes. On

July 14, 2009, the Department forwarded the case to the Division

of Administrative Hearings for assignment of an administrative

law judge.

A Notice of Hearing issued August 4, 2009, scheduling the

final hearing for October 12, 2009, and the case proceeded as

scheduled. At hearing, Petitioner presented the testimony of

Harry Barraclough, Lucille Epley and Candida Nowlin, and

Petitioner's Exhibits 2-4 were admitted into evidence.

Respondent testified on his own behalf and presented the

testimony of Deborah Willette. The proceedings were recorded and

a Transcript was filed with the Division November 3, 2009. Both

parties timely filed Proposed Recommended Orders, which were

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administrative Complaint, Respondent was certified by the

Department as a correctional officer in the State of Florida,

having been issued Correctional Certificate #170241.

2. Respondent and Candida Nowlin are engaged and live

together. They have lived together since 2002. Ms. Nowlin has

two children from a previous relationship and she and Mr. Saria

have a child together.

3. At the time of the events giving rise to these

proceedings, the couple was under a great deal of stress because

of a serious accident involving one of Ms. Nowlin's children.

4. On the evening of November 6, 2006, Mr. Saria and

Ms. Nowlin had an argument. She asked him to leave, and he

refused. In his anger, he slammed a cordless phone in their home

against the kitchen counter. However, there is no competent

evidence that he struck or grabbed her, or threw her into a wall.

The only competent testimony presented is that he touched her

arms in order to move her out of his path as he went to another

room in the home, but did not harm her in any way.

5. Ms. Nowlin felt that she and Mr. Saria needed some time

apart, so when Mr. Saria refused to leave their home, she went

with her young daughter next door to her neighbor's home to call

the police.

6. Her neighbor, Ms. Epley, was having a dinner party. She

noticed that Ms. Nowlin was crying and she let her use her phone,

but was distracted by her hostess duties. She did not remember

Ms. Nowlin being injured, and Ms. Nowlin did not tell her that

Mr. Saria had beaten her up.

7. Ms. Nowlin called the police from Ms. Epley's home. Two

officers came to the home, then-officer Barraclough and Sergeant

Spears. They interviewed Ms. Nowlin, Ms. Epley, and Mr. Saria,

and arrested Mr. Saria and took him away. After they had removed

Mr. Saria from the home, the two officers completed statements

from both Ms. Epley and Ms. Nowlin.

8. Officer Barraclough testified that he saw scratches and

red marks on Ms. Nowlin's arms. However, his testimony was

contradicted by all other witnesses who testified, and is not

credited.

9. Sergeant Spears, who did not testify, took Ms. Nowlin's

statement. While she was doing so, Ms. Nowlin's mother came to

the home. Her testimony, which is credited, is that Ms. Nowlin

had no bruises or marks on her arms and that Ms. Nowlin was

primarily upset at that point because Mr. Saria had been

arrested.

10. The only competent evidence of what happened between

Ms. Nowlin and Mr. Saria during their argument is the testimony

of the two of them. They both deny vehemently that he struck her

or engaged in any unwanted touching. They both insist that they

had an argument because of the amount of stress they were under,

and that the police were called because Ms. Nowlin felt they

needed some time away from each other.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

12. This is a disciplinary proceeding against Respondent's

license. Accordingly, the Department must prove the allegations

in the Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Sterne, Inc. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

13. Clear and convincing evidence:

requires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

14. The Administrative Complaint alleges that Respondent

failed to maintain good moral character as required by Section

943.13(7), and thereby violated Section 943.1395(7), Florida

Statutes, which provides:

(7) Upon a finding by the commission that a

certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by s.

943.13(7), the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a period

not to exceed 2 years.

(c) Placement on a probationary status for a

period not to exceed 2 years, subject to

terms and conditions imposed by the

commission. Upon the violation of such terms

and conditions, the commission may revoke

certification or impose additional penalties

as enumerated in this subsection.

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

15. The Department has defined the failure to maintain good

moral character, as required by Section 943.13(7), Florida

Statutes, in Florida Administrative Code Rule 11B-27.0011. This

rule provides in pertinent part:

(4) For the purposes of the Criminal

Justice Standards and Training Commission’s

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer’s failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

* * *

(b) Except as otherwise provided in

Section 943.13(4), F.S., a plea of guilty or

a verdict of guilty after a criminal trial

for any of the following misdemeanor or

criminal offenses, notwithstanding any

suspension of sentence or withholding of

adjudication, or the perpetration by an

officer of an act that would constitute any

of the following misdemeanor or criminal

offenses whether criminally prosecuted or

not:

1. Sections . . . 784.03 . . . , F.S.

16. Section 784.03, Florida Statutes, provides:

(1)(a) The offense of battery occurs when a

person:

1. Actually and intentionally touches or

strikes another person against the will of

the other; or

2. Intentionally causes bodily harm to

another person.

(b) Except as provided in subsection (2), a

person who commits battery commits a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or s. 775.083.

17. The Department has not proven the allegations in the

Administrative Complaint by clear and convincing evidence. As

stated in the findings of fact, there was no credible evidence

that Respondent caused any bodily harm to Ms. Nowlin or anyone

else, or that he touched or struck Ms. Nowlin against her will.

At best, the evidence showed that the couple had an argument they

both regret during a stressful time in their relationship. The

competent, credible evidence falls far short of demonstrating

that a battery occurred. Therefore, the evidence does not

demonstrate that Respondent failed to maintain good moral

character in violation of Section 943.1395(7), Florida Statutes.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing the Administrative

Complaint.

DONE AND ENTERED this 24th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of November, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to Florida Statutes

are to the 2006 codification.

COPIES FURNISHED:

Sharon Saxler, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Antonio R. Saria

5240 Hawks Nest Drive

Milton, Florida 32570

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.