05-004458PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Tena D. Grant Status: Closed Recommended Order on Tuesday, April 4, 2006.

Summary: Respondent`s certification as a correctional officer should be revoked because she failed to maintain good moral character when she had a second occurrence of driving under the influence of alcoholic beverages.

C ase No. 05 - 4458PL

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

TENA D. GRANT,

Respondent.

RECOMMENDED ORDER

A formal administrative hearing in this case was held on

February 15, 2006, in Sebring, Florida, before Bram D.E. Canter,

an Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Tena D. Grant, pro se

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set

forth in the Administrative Complaint filed against the

Respondent are true , and, if so, what penalty should be imposed.

PRELIMIN ARY STATEMENT

On September 13, 2005, the Criminal Justice Standards and

Training Commission (Petitioner) filed an Administrative

Complaint against Tena D. Grant (Respondent), seeking to

discipline Respondent's correctional officer’s license for

alleged vio lations of Chapter 943, Florida Statutes. 1/

Specifically, Petitioner charged Respondent with violating the

provisions of Subsections 943.1395(6) and (7), Florida Statutes,

and Florida Administrative Code Rule 11B - 27.0011(4)(b), for

failing to maintain good moral character in that Respondent was

driving a motor vehicle while under the influence of alcoholic

beverages. Respondent disputed the allegations of the

Administrative Complaint and requested a formal hearing. The

request was forwarded to DOAH, which scheduled and conducted the

formal hearing.

At the hearing, Petitioner presented the testimony of

Corporal Andrew Markham of the City of Sebring Police Department

and Deputy Loran Danielson of the Highlands County Sheriff's

Office. Petitioner's Exhibit 1 was admitted into evidence.

Respondent testified on her own behalf. Respondent's Exhibit 1

was admitted into evidence.

By agreement of the parties, the record was left open to

provide Respondent an opportunity to conduct depositions of two

persons that Respondent was with shortly before her arrest.

Respondent was directed to conduct the depositions within 20

days of the hearing and to submit the transcripts of the

depositions to DOAH. However, Respondent did not conduct the

depositions.

The partie s were given ten days from the filing of the last

transcript (the hearing transcript or the transcript of the

depositions) to file any post - hearing submittals. The

Transcript of the hearing was filed on March 20, 2006. A

Proposed Recommended Order was fi led by Petitioner on March 29,

2006. No timely post - hearing submittal was filed by Respondent.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

responsibility for certification of correctional officers within

the State of Florida.

2. Respondent holds Correctional Certificate No. 200857,

issued to her by Petitioner.

3. Shortly after 2:00 a.m. , on January 8, 2005, Corporal

Andrew Markham of the City of Sebring Police Department was

dispatched to the scene of a reported traffic crash at the

intersection of Center Street and Northeast Lakeview Drive in

Sebring, Florida. Corporal Markham found no vehicles in the

intersection or any evidence of a crash there.

4. Adjacent to the intersection, in the parking lot of the

Sebring Public Librar y, Corporal Markham saw a car with its

brake lights illuminated. He approached the car to determine

whether the occupants could provide any information about the

reported traffic accident.

5. Corporal Markham observed that the front of the car was

damage d from its collision with a low barrier wall that bordered

the parking lot. The windshield was also damaged from what

Corporal Markham concluded was the impact of the occupants '

heads with the windshield when the car hit the barrier.

6 . When Corporal Mar kham approached the car, he saw

Respondent exit the driver's seat and begin to walk away.

Corporal Markham stopped Respondent to speak with her.

Respondent had blood on her face, as did the other occupant of

the car.

7 . At the time of the incident, Resp ondent denied being

the driver of the car. At the hearing, Respondent admitted that

she was the driver.

8 . During his conversation with Respondent at the scene,

Corporal Markham smelled the odor of alcohol on Respondent,

noted that she was unsteady, an d that her eyes were red.

9 . When Corporal Markham asked Respondent to take field

sobriety tests, she continued to insist that she was not the

driver of the car and would not take the tests.

10. Based on his observations at the scene, his training,

and hi s 13 years of experience as a police officer, Corporal

Markham believed Respondent was under the influence of alcoholic

beverages to the extent that her normal faculties were impaired.

Therefore, he arrested Respondent for the offense of driving

under the influence of alcohol.

1 1 . Corporal Markham first transported Respondent to the

Highlands County Medical Center to receive treatment for her

injury. At the Medical Center, Respondent refused medical

treatment , and Corporal Markham transported her to the Highlands

County Jail.

1 2 . At the jail, Respondent was taken to the area where

breath tests are conducted. Corporal Markham read Respondent

the "Implied Consent" that informed her that if she refused to

take the test, she could lose her driving privileg e for up to

one year. Respondent refused to take a breath test at the jail.

1 3 . Deputy Loran Danielson of the Highlands County

Sheriff's Office was the officer on duty to conduct the breath

tests at the jail. When Deputy Danielson met Respondent, he

no ted that her breath smelled strongly of alcohol, her eyes were

bloodshot, her speech was slurred, and she was unsteady on her

feet. Based on his observations of Respondent, his training,

and his 10 years of experience as a Deputy Sheriff, Deputy

Danielson was of the opinion that Respondent was under the

influence of alcoholic beverages to the extent that her normal

faculties were impaired.

1 4 . During the time that Deputy Danielson talked to

Respondent, she told him that she had consumed "many" drinks ,

and if she took the breath test, it would show "I'm drunk."

1 5 . On September 27, 2004, less than four months before

the incident at issue in this case, Petitioner issued Respondent

a Letter of Acknowledgement for an earlier dri v ing under the

influen ce (DUI) violation by Respondent.

1 6 . At the hearing, Respondent admitted that she had "a

few drinks" with friends at a bar just prior to her arrest, but

she denied that she was intoxicated. Respondent said the crash

occurred because she had taken her e yes off the road to speak to

passengers in the back seat. Respondent said she refused to

take the field sobriety test s or the breath test at the jail

because she was scared. Respondent explained that one term of

her probation for the prior DUI conviction was that she was not

to drink alcohol.

1 7 . Respondent expressed remorse for her behavior on

January 8, 2005, and claimed she ha s stopped drinking alcohol.

Respondent stated that her career as a correctional officer is

very important to her , a nd she req uested another opportunity to

prove she is a responsible person and capable correctional

officer.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sect ions 120.569, 120.57, and 943.1395,

Florida Statutes.

1 9. Petitioner has the burden of proof to show by clear

and convincing evidence that Respondent committed the acts

alleged in the Administrative Complaint. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1 987).

20 . The "clear and convincing" evidence standard has been

described as follows:

[C]lear 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

test imony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief or

conviction, without hesitancy, as to the

t ruth of the allegations sought to be

established.

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

2 1 . The Administrative Complaint charged Respondent with

violating Subsections 943.1395(6) "and/or" (7), Florida

Statutes. Petitioner did not pursue the charge regarding

Subsection 943.1395(6), Florida Statutes, in its Proposed

Recommended Order. Subsection 943.1395(6), Florida Statutes,

relates to felony convictions and there is no record evidence

regarding whether Respondent was formally convicted of the crime

of driving under the influence as a result of her arrest on

January 8, 2006. Petitioner did not meet its burden to prove by

clear and convincing evidence that Respondent violated

Subsection 943.1395(6), Florida Statutes.

2 2 . S ubsection 943.1395(7), Florida Statutes, provides

that Petitioner may take disciplinary action against a

correctional officer who has not maintained good moral

character.

2 3 . Florida Administrative Code Rule 11B - 27.0011(4)

provides that a violation of Sec tion 316.193, Florida Statutes

(driving under the influence of alcoholic beverages to the

extent that the person's normal faculties are impaired), whether

or not the violation was criminally prosecuted, constitutes a

failure to maintain good moral characte r. 2/

2 4 . Through the testimony of Corporal Markham and Deputy

Danielson, Petitioner proved by clear and convincing evidence

that on January 8, 2005, Respondent was driving under the

influence of alcoholic beverages to the extent that her normal

faculties were impaired. Therefore, Petitioner met its burden

to demonstrate that Respondent failed to maintain good moral

character.

2 5 . Florida Administrative Code Rule 11B - 27.005(5)10. sets

forth the disciplinary guideline applicable to this case. The

guide line penalty for the offense of driving under the influence

is probation with substance abuse counseling or, in the case of

a second offense, suspension or revocation of the officer's

certification.

2 6 . Because this is Respondent's second DUI offense , an d

it occurred so close in time to the first DUI disciplinary

action, Petitioner is seeking to revoke Respondent's

certification.

2 7 . For the reasons advanced by Petitioner and because

Respondent still refuses to tell the truth about the events of

January 8, 2005, the revocation of her certification is a fair

and reasonable penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner Department of Law Enforcement,

Criminal Justice Standards and Training Commission, enter a

f inal o rder finding that Respondent Tena D. Grant failed to

demonstrate good moral character as required by Subsection

943.13(7), Florida Statutes, and ordering that her certification

as a correctional officer be revoked.

DON E AND ENT ERED this 4th day of April , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Flo rida 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 4th day of April , 2006 .

ENDNOTES

1/ All references to the Florida Statutes are to Flo rida

Statutes (2005).

2/ In its Administrative Complaint, Petitioner charged

Respondent with violatin g Florida Administrative Code Rule

11B- 27.0011(4). However, the purpose of th is R ule is to define

the term "good moral character , " and one cannot "viola te" a

definition.

COPIES FURNISHED

:

Joseph S. White, Esquire Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Tena D. Grant

Michael Crews, Program Director

Criminal Just ice Standards and

Training Commission

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 SUBM IT 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.