07-000668PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Curtis Coleman, Jr. Status: Closed Recommended Order on Thursday, May 31, 2007.

Summary: Respondent failed to maintain good moral character by commiting an assault.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) )

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

) Case No. 07-0668PL

vs. )

)

CURTIS COLEMAN, JR., )

)

Respondent. )

RECOMMENDED ORDER

Notice was provided and on April 17, 2007, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes

(2006). The hearing location was the Alachua County Civil

Courthouse, 201 East University Avenue, Gainesville, Florida.

The hearing was conducted by Charles C. Adams, Administrative Law

Judge.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Should the Criminal Justice Standards and Training

Commission (the Commission) impose discipline on Respondent in

association with his Correctional Officer Certificate?

PRELIMINARY STATEMENT

On August 24, 2006, by an Administrative Complaint in Case

No. 23134, the Commission accused Respondent of unlawfully

committing a battery upon Misty J. Quarles, by actually touching

or striking Ms. Quarles or intentionally causing bodily harm to

Ms. Quarles against her will. The incident is alleged to have

occurred on October 28, 2004. By these actions, Respondent was

alleged to have violated the provisions of Section 784.03,

Florida Statutes (2004), or any lesser included offense as well

as Section 943.1395(6) and (7), Florida Statutes (2004), and

Florida Administrative Code Rule 11B-27.0011(4)(b), by the

failure to maintain the qualifications established in Section

943.13(7), Florida Statutes (2004), required of a correctional

officer in Florida, that is the maintenance of good moral

character.

The Commission provided Respondent an opportunity to elect a

response to the charges by executing a form provided him.

Respondent choose the option to dispute the allegations of fact

in the Administrative Complaint. That choice was checked on the

form and was considered a petition for a formal hearing pursuant

to Section 120.57(1), Florida Statutes (2006). The choice was

executed on November 27, 2006, before a notary public in Georgia.

By this election, Respondent wrote in that he disputed "the

allegations that are being charged against me." This is

understood to refer to the underlying factual allegations

concerning an alleged battery committed upon Ms. Quarles.

Respondent in executing the Election of Rights form noted his

address as 1203 Alta Town Lake Circle, Pooler, Georgia 31322.

On February 9, 2007, the Division of Administrative Hearings

(DOAH) received the case from the Department of Law Enforcement

(FDLE) requesting the assignment of an Administrative Law Judge

to conduct a formal hearing to resolve material facts in dispute.

The case was assigned as DOAH Case No. 07-0668PL to be considered

by the undersigned.

On February 23, 2007, a Notice of Hearing was provided the

parties setting forth April 17, 2007, as the hearing date.

Respondent's Pooler, Georgia, address reflected in the executed

Elections of Rights form was used in providing notice. That same

address had been used in an Initial Order dated February 9, 2007,

and an Order of Pre-hearing Instructions dated February 23, 2007,

sent to Respondent. The orders and Notice of Hearing were sent

to Respondent by ordinary mail. None of those items were

returned as undeliverable.

Respondent did not attend the hearing. No one attended the

hearing in his behalf. No explanation was provided concerning

the lack of attendance either at that time or since. It was

determined that the Respondent had been appropriately noticed

and Petitioner was allowed to proceed with its case.

§ 120.569(2)(b), Fla. Stat. This choice recognized that

Respondent had disputed the underlying factual allegations that

formed the basis for the Administrative Complaint when provided

that opportunity and had never withdrawn the request for formal

hearing.

Petitioner presented Misty Quarles, Carol Hunter, R.N., and

Deputy Robert Wesley as its witnesses. Petitioner's Exhibits

numbered one and two were admitted.

On May 3, 2007, a hearing Transcript was filed with DOAH.

Petitioner filed a Proposed Recommended Order which has been

considered in preparing the Recommended Order.

FINDINGS OF FACT

1. Having considered Respondent's comment in requesting a

formal hearing, it is inferred that Respondent holds a

correctional officer's certificate issued by the Commission.

2. On October 28, 2004, Respondent and Misty Quarles were

living together in Gainesville, Florida, as a couple.

Ms. Quarles describes their relationship as boyfriend and

girlfriend. Respondent determined to end the relationship, to

include removing Ms. Quarles' name from the lease for the

apartment. An argument ensued. Ms. Quarles left the bedroom and

went to the bathroom and closed the door. Respondent opened it

and started yelling at Ms. Quarles. Respondent was angry.

Respondent pushed Ms. Quarles forcefully. She fell to the

ground. When Respondent pushed her down, Ms. Quarles hit her

head on the and door the impact left a knot on her head. She got

up and pushed Respondent back. The argument continued.

Respondent pushed Ms. Quarles again and she landed on the bed in

the bedroom. Ms. Quarles then began to pack her belongings to

leave. Respondent started gathering some of her clothing and

other effects to throw in the dumpster outside the apartment.

Ms. Quarles knocked those items out of Respondent's hands.

Respondent began yelling again and punched Ms. Quarles on her leg

while holding her down on the bed. In trying to stop Respondent

from punching her, Ms. Quarles used her right hand to resist the

Respondent. He pushed against a joint in her hand, causing a

right thumb fracture at the base of the first metacarpal. After

that, Ms. Quarles asked Respondent to take her for medical

treatment. Respondent took Ms. Quarles to North Florida Regional

Medical Center where she was observed to have the fracture,

together with abrasions on her nose, under her left eye, and a

contusion on her right forehead. Her right hand was also

swollen. Ms. Quarles received a splint and was told to use ice

and employ elevation and rest to deal with her fracture. She was

provided pain medication and referred to an orthopedic physician.

Petitioner's Exhibit numbered one is a composite exhibit

containing a series of photographs depicting Ms. Quarles physical

state after her encounter with the Respondent leading to her

injuries.

3. Respondent's actions against Ms. Quarles were against

her will and intentionally caused bodily harm.

4. Deputy Robert Wesley of the Alachua County Sheriff's

Office came to the hospital to investigate. Based upon his

investigation, he arrested Respondent for felony domestic battery

involving the incident with Ms. Quarles. The disposition of that

arrest was not explained at hearing.

5. There is no indication that Respondent has had prior

discipline imposed on his correctional officer's certificate.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter in this case consistent

with Sections 120.569 and 120.57(1), Florida Statutes (2006).

7. By this action, the Commission seeks to discipline

Respondent concerning his correctional officer's certificate.

Petitioner bears the burden of proving the allegations in the

Administrative Complaint before discipline can be imposed against

Respondent's certificate. The nature of that proof must be by

clear and convincing evidence. Department of Banking and Finance

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

8. The meaning of clear and convincing evidence is

explained in the case In Re: Davey 645 So. 2d 398 (Fla. 1994),

quoting with approval from Slomowitz v. Walker , 429 So. 2d 797

(Fla. 4th DCA 1983).

9. Concerning the factual allegations in the case the

Administrative Complaint alleges at paragraph two:

On or about October 28, 2004, the Respondent,

Curtis Coleman, Jr., did unlawfully commit a

battery upon Misty J. Quarles, by actually

touching or striking Misty J. Quarles or

intentionally causing bodily harm to Misty J.

Quarles against her will.

10. Among the grounds for discipline referred to in the

Administrative Complaint is Section 943.1395(6), Florida Statutes

(2004), which states in pertinent part:

The commission shall revoke the certification

of any officer who is not in compliance with

the provisions of s. 943.13(4) or who

intentionally executes a false affidavit

established in s. 943.13(8), s. 943.133(2),

or s. 943.139(2).

* * *

11. Section 943.1395(6), Florida Statutes (2004), when

compared to the underlying factual allegations in the

Administrative Complaint is not relevant, in that there is no

allegation of conviction of a felony or misdemeanor involving

perjury or false statements, dishonorable discharge from the

Armed Forces, or provision of false affidavits concerning

employment.

12. In the alternative, the Respondent is being prosecuted

pursuant to Section 943.1395(7), Florida Statutes (2004), which

states:

(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.

13. A rule referred to in the Administrative Compliant that

deals with the maintenance of good moral character is Florida

Administrative Code Rule 11B-27.0011(4)(b), which states:

For the purposes of the Criminal Justice

Standards and Training Commission's

implementation of any of the penalties

specified in Section 943.1395 . . . (7),

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

maintain good moral character required by

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

the perpetration by an officer of any act

that would constitute any of the following

misdemeanors or criminal offenses whether

criminally prosecuted or not: . . . 784.03,

F.S.

14. Section 943.13(7), Florida Statutes (2004), mentioned

in the Administrative Complaint and the aforementioned rule,

refers to the need for an officer to have a "good moral character

as determined by background investigation under procedures

established by the Commission."

15. Section 784.03, Florida Statutes (2004), states:

Battery; felony battery.-

(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.

(2) A person who has one prior conviction

for battery, aggravated battery, or felony

battery and who commits any second or

subsequent battery commits a felony of the

third degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084. For

purposes of this subsection, "conviction"

means a determination of guilt that is the

result of a plea or a trial, regardless of

whether adjudication is withheld or a plea of

nolo contendere is entered.

16. There was no showing that Respondent had been

criminally prosecuted for battery as set out in Section 784.03,

Florida Statutes (2004), but clear and convincing evidence was

presented that on October 28, 2004, Respondent did commit a

battery on Misty Quarles by pushing her, causing her to strike

her head on a door and leaving a knot on her head, pushing her

again, punching her on her leg, holding her down on the bed, and

fracturing her thumb, all against her will and with intent.

17. Disciplinary guidelines are established in Florida

Administrative Code Rule 11B-27.005 pertaining to the violations

described. With those guidelines in mind, a recommendation for

punishment is offered based upon the facts found and conclusions

of law reached, absent a prior disciplinary history.

RECOMMENDATION

Based upon the consideration of the facts found and the

conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding violations of the

statutes and rules referred to and revoking Respondent's

correctional officer's certificate.

DONE AND ENTERED this 31st day of May, 2007, in Tallahassee,

Leon County, Florida.

S

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May, 2007

COPIES FURNISHED:

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Curtis Coleman, Jr.

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Rampage, 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.