13-003024 Pinellas County Sheriff&Apos;S Office vs. Richard Stotts Status: Closed Recommended Order on Tuesday, November 12, 2013.

Summary: Respondent violated the Pinellas County Sheriff's Civil Service Act. Sheriff's disciplinary action, termination, is justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF ' S

OFFICE ,

Petitioner ,

vs. Case No. 13 - 3024

RICHARD STOTTS ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final h earing in this cause was held

on October 1, 2013, in St . Petersburg , Florida, before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Paul Grant Rozelle, Esquire

Pinellas County Sheriff ' s Office

10750 Ulmerton Road

Largo, Florida 33778

For Respondent: Craig L. Berman, Esquire

Berman Law Firm, P.A.

Suite 706

111 2nd Avenue Northeast

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

Whether the Pinellas County Sheriff ' s Office (PCSO or

Petitioner) properly terminated Respondent, Richard Stotts, from

his employment as a deputy sheriff for engaging in conduct that

violated Petitioner ' s General Order 3 - 1.1, Rule and Regulation

5.15, regarding the Custody of Arrestees/Prisoners.

PRELIMINARY STATEMENT

O n July 29, 2013, Petitioner terminated Respondent ' s

employment as a dep uty sheriff. On August 1, Respondent timely

requested " relief/appeal as set in [sic] forth in General Order

10 - 3. " Petitioner forwarded the matter to the Division to

conduct the hearing. The final hearing was noticed for Tuesday,

October 1, 2013. 1/ On September 25, Respondent filed a Motion to

Continue, which was denied.

O n Friday, September 27, Respondent filed an Amended Exhibit

and Witness List, which prompted Petitioner to file a Motion to

Strike and Exclude Respondent ' s Amended Witness List and Am ended

Proposed Exhibit List, and Emergency Motion for a Protective

Order Regarding Sheriff Gualtieri (motion). Thereafter

Respondent filed a Renewed Motion for a Continuance and

Opposition to Petitioner ' s Motion to Strike and Exclude and for a

Protective Order Regarding Sheriff Gualtieri. Following a

telephonic hearing, the renewed motion for continuance was

denied, the motion regarding the protective order was granted,

and the ruling on the Amended Exhibit L ist was reserved for the

hearing.

A t the heari ng on October 1, 2013, Joint Exhibits 1 through

13 were admitted into evidence. Petitioner presented the

testimony of Respondent, Captain David Danzig and Sergeant Deanna

Carey . 2/ Respondent testified on his own behalf . Captain Danzig

was called in rebu ttal. Respondent offered Exhibits 1 through

3 , 3/ which were admitted. 4/

The T ranscript of the proceedings was filed on October 15,

2013. Petitioner timely filed its Proposed Recommended Order

(PRO) on October 25. Respondent ' s PRO was filed on October 2 8. 5/

On October 29, Petitioner filed a Motion to S trike Respondent ' s

P roposed R ecommended O rder (Strike Motion) , citing Respondent ' s

failure to comply with Florida Administrative Code Rule 28 -

106.104(1) and (3). The Strike Motion is denied . E ach PRO has

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

1 . Bob Gualtieri is the duly - appointed s heriff of Pinellas

County, Florida.

2 . Sheriff Gualtieri is in command of the operations of

PCSO.

3 . Sheriff Gualtieri ' s responsi bilities include providing

law enforcement services within Pinellas County, Florida.

4 . Sheriff Gualtieri is authorized to impose discipline, in

accord ance with the Civil Service Act, on PCSO members and

employees who are found to have violated PCSO rule s or

regulations.

5 . At all times pertinent to this case, Respondent was

employed by PCSO as a deputy sheriff.

6 . At the time of his termination, Respondent had been

employed by PCSO for approximately 12 years.

7 . As a deputy sheriff , Respondent was charged with the

responsibility of complying with all PCSO rules, regulations,

general orders, and standard operating procedures.

8 . PCSO General Order 13 - 3 require s that PCSO members shall

use only that degree of force necessary to perform official

duti es. The member shall not strike or use physical force

against a person except when necessary in self - defense, in

defense of another, to overcome physical resistance to arrest, to

take an individual into protective custody, or to prevent escape

of an arres ted person.

9 . At the time of the events in issue in this case, Captain

David Danzig (then a Lieutenant) was assigned to the PCSO

Administrative Investigations Division.

1 0 . Sergeant Deanna Carey is assigned to the PCSO

Administrative Investigations Di vision.

1 1 . Sergeant Christina Cuttitta is assigned to the PCSO

Administrative Investigations Division.

1 2 . Sergeants Carey and Cuttitta investigated the complaint

of misconduct that was filed against Respondent on or about

June 11, 2013.

1 3 . The co mplaint of misconduct alleged that on May 8,

2013, Respondent violated General Order 3 - 1.1, Rule and

Regulation 5.15 , pertaining to the custody of

a rrestees/prisoners.

1 4 . At the Administrative Review Board (ARB) hearing,

Respondent admitted that his use of force on the inmate was not

justified because it did not meet the criteria for use of force.

1 5 . PCSO General Order 10 - 2 covers discipline and ranks

certain offenses. This General Order ranks offenses from Level 1

to Level 5. A Level 5 offense is t he most severe. A L evel 1

offense is the least sever e . Further, this General Order sets

forth a procedure for assigning points for each sustained

violation. According to the number of points, there is a

corresponding table that indicates the range of pu nishment. The

point total for the violation admitted before the ARB in

Respondent ' s case was 50.

1 6 . Respondent had five carryover points from prior

discipline.

1 7 . U nder PCSO General Order 10 - 2, 55 points reverts to 50

points.

1 8 . U nder PCSO Genera l Order 10 - 2, the range of discipline

for a 50 - point violation is a minimum five - day suspension to

termination.

19 . Sheriff Gualtieri terminated Respondent from his

employment with PCSO effective 1200 hours on July 29, 2013.

2 0 . Exhibit 13 is a series of six video clips taken from

various angles in the intake and booking section of the Pinellas

County Jail. T he six video clips document Respondent ' s actions.

Respondent was not involved in bringing the inmate into the

intake/booking area. The inmate, w ho was yelling obscenities and

racial slurs, was standing on the mat to have his picture taken

when Respondent left his station, approached the inmate , and

proceeded to strike the inmate and take him to the floor.

Respondent admitted that he used force on the inmate. Respondent

admitted that the use of force on this inmate was not justified .

21. In the past three years, two (former) deput y sheriff

were terminated for Level 5 offenses. While the exact offenses

involved other Level 5 offenses, the consis tency in discipline is

constant : termination. There was no justification for

Respondent ' s action.

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. § 120. 65(7 ), Fl a. Stat . (201 3 ).

2 3 . Petitioner is asserting that Respondent violated PCSO

General Order 3 - 1.1, Rules and Regulations 5.15 . Petitioner, as

the party asserting the affirmative, has the burden of proving by

a preponderance of the evidence that Respondent com mitted the

alleged violation. " The burden of proof, apart from statute, is

on the party asserting the affirmative of an issue before an

administrative tribunal. " Balino v. Dep ' t of HRS , 348 So. 2d

348, 350 (Fla. 1 st DCA 1977).

2 4 . A preponderance of th e evidence is defined as " the

greater weight of the evidence " or evidence that " more likely

than not " tends to prove a certain proposition. Gross v. Lyons ,

763 So. 2d 276, 289 n.1 (Fla. 2000).

2 5 . Chapter 89 - 404, Laws of Florida, as amended by Chapter

90 - 395, Laws of Florida, authorizes the sheriff to take certain

disciplinary action against classified employees. Chapter 89 - 404

also authorizes the PCSO to adopt rules and regulations as are

necessary to carry out the sheriff ' s functions. Pursuant to th is

authority, the PCSO has adopted policies, rules, and regulations

which establish a standard of conduct which must be followed by

employees of the sheriff ' s office.

2 6 . General Order 3 - 1 provides that its purpose " is to

establish a standard of conduct, which must be followed by

members of the agency " (the PCSO). This General Order also

provides the PCSO disciplinary system. The disciplinary system

has five levels with L evel 5 applying to the most serious

infractions.

2 7 . General Order 3 - 1.1 includes Rule and Regulation 5.15,

which addresses the " Custody of Arrestees/Prisoners. " This rule

provides:

Arrestees/prisoners shall be kept secured and

treated humanely and shall not be subjected

to physical abuse. The use of physical force

shall be restrict ed to circumstances

specified by law when necessary to accomplish

a police task.

2 8 . Petitioner has met its burden of proving that

Respondent subjected an inmate to physical abuse that was not

warranted , and termination of employment is a reasonable

di scipline .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is r ecommended that Petitioner, Pinellas County Sheriff ' s

Office, enter a final order finding that Respondent, Richard

Stotts , violated General Order 3 - 1.1, Rules and Regulations 5.15,

and terminating his employment.

DONE AND ENTERED this 12th day of November , 2013 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 12th day of November , 2013 .

ENDNOTE S

1/ In a pleading filed on September 25, Respondent ' s counsel

avers that he filed a Notice of Appearance on August 23, yet he

failed to receive a copy of the August 26 Notice of Hearing.

Respondent ' s counsel ' s Notice of Appearance was filed with the

Divi sion on September 24. On August 26 , 2013, Respondent was

sent the Notice of Hearing to his address of record.

2 / Respondent a lso listed these witnesses for h is case - in - chief.

To provide an orderly hearing flow and allow Respondent the

opportunity to eli cit the direct testimony of each witness, the

undersigned allowed Respondent ' s cross - examination to go beyond

Petitioner ' s direct.

3 / These three exhibits were still photographs taken from the

video that was admitted as Joint Exhibit 13.

4 / Respondent did not offer the three additional exhibits that

were the subject of the September 27th motion .

5 / Respondent ' s certificate of service reflects that counsel

certified " that on October 25, 2013, I emailed/electronically

filed the foregoing with the eALJ system which will send a notice

of electronic filing to Paul G. Rozelle, Esquire, 10750 Ulmerton

Rd., Largo, FL 33778 [sic] " . T he eALJ filing contains a

highlighted notice that no notice is sent to the opposing party.

Hence, a Notice of Ex - parte Communic ation was issued on

October 29, 2013.

COPIES FURNISHED:

Paul Grant Rozelle, Esquire

Pinellas County Sheriff ' s Office

10750 Ulmerton Road

Largo, Florida 33778

Craig L. Berman, Esquire

Berman Law Firm, P.A.

Suite 706

111 2nd Avenue Northeast

St. Peters burg, Florida 33701

Carole Sanzeri, Esquire

Pinellas County Attorney ' s Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e 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.