Judges: STEPHEN F. DEAN
Agency: Department of Management Services
Latest Update: Apr. 22, 1980
Summary: Set aside suspension of Petitioner and grant him back pay and costs.
76-0958.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BARRY ADRIANCE, )
)
Petitioner, )
)
vs. ) CASE NO. 76-958
) DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, FLORIDA HIGHWAY ) PATROL, AND CAREER SERVICE )
COMMISSION, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held pursuant to notice on August 19, 1976 in the above style cause in Room 368, Florida State Office Building, 1350 N. W. 12th Avenue, Miami, Florida. This case arose upon the suspension of Barry Adriance, a career service employee of the State of Florida, on the basis that he had, while serving as a Florida Highway Patrolman, willfully mistreated a prisoner contrary to General Order 43.4 and displayed a firearm contrary to Rule 2.1C.
APPEARANCES
For Petitioner: Edwin Strickland, Esquire
General Counsel
Neil Kirkman Building Apalachee Parkway Tallahassee, Florida 32304
For Respondent: Jaires L. Hendrick, Esquire
317 Whitehead Street
Key West, Florida 33040 FINDINGS OF FACT
At approximately 8:00 p.m. on December 9, 1975, Patrolmen Barry Adriance and Billy Godwin were engaged in traffic duties in Key Largo, Monroe County, on State Road 5 (Highway 90).
Patrolman Godwin was operating a traffic radar set in the median strip of the highway when he observed two similar pickup trucks traveling in the same direction along the four-lane divided highway.
Adriance, also observing the approaching vehicles, proceeded to his vehicle in preparation to pursue them if Godwin determined that they were exceeding the 45 MPH posted speed limit.
It appeared to both officers that the vehicle in the left-hand lane was passing the vehicle in the right-hand lane.
Godwin obtained a radar speed clock on the vehicle in the left lane, and advised Adriance that the speed was 63 MPH; however, he did not state which vehicle he had clocked.
Adriance pursued the two vehicles turning on his blue emergency lights as he approached the two vehicles. At that time the vehicle in the left lane changed to the right lane and slowed. Adriance passed the first vehicle in the right-hand lane which was later determined to be driven by Gary Sands.
The other vehicle slowed and pulled left to the median strip and the Sands' vehicle stopped on the right-hand side of the road. Adriance pulled in front of this vehicle on the median strip, got out of his car and told Sands, who had stopped on the right, to stay where he was and that he would be with him in a minute. Adriance was uncertain, however, if Sands heard him.
Adriance determined that the driver of the vehicle on the median strip had been injured and was proceeding to the hospital in Miami, whereupon he directed him to proceed.
9.. As Adriance turned to the Sands' vehicle, it began to leave the scene and Adriance got back in his car and pursued the Sands' truck. Because of a delay in starting his car, Adriance had to speed to catch up with Sands, who Adriance observed turning right off SR 5. Adriance, upon turning behind Sands, again observed Sands turning.
Adriance proceeded down the side road and observed Sands leaving his truck and going to his house. Adriance pulled his patrol car behind Sands' truck and asked Sands to stop and show him his driver's license.
Sands and Adriance became involved in a discussion in which Sands protested he had not been speeding, while Adriance tried to determine if Sands had a registration for the truck which had no license and to determine if Sands had been drinking.
Sands admitted to drinking four beers but denied having heard Adriance tell him to stay stopped on SR 5.
After approximately ten minutes, Sands told Adriance he had had enough and was going to go inside the house. Sands turned and walked approximately ten to twelve feet to the front door of his house. Adriance told him to stop several times and when he did not, Adriance went after Sands, catching up with him at the door. Adriance put his arm over Sands' shoulder to stop him, whereupon Sands plunged forward into the house. Both men lost their footing and fell into the front room, Sands on his stomach, arms outstretched, and Adriance going to one knee in the doorway.
Adriance observed Sands reach under a nearby bookcase and thought Sands was going after a weapon. Adriance jumped back out the door, went to his car and called for help from Godwin on his radio.
Sands got to his feet, and sat down without a weapon in a chair in full view of Adriance, who went to the door, told Sands he was under arrest, handcuffed him, and placed him in his car.
Godwin arrived at this point and they all proceeded to the Key Largo substation, where Sands received a breatholizer test which indicated Sands had a
.09 blood alcohol level.
This level of blood alcohol was slightly below the statutory amount required to show prime facie evidence of driving under the influence, and in a discussion with Godwin, Adriance learned that Godwin had clocked the other vehicle. Because there was little hard evidence of Sands having committed a traffic offense, it was determined that they would not charge Sands.
Upon arriving at the Key Largo substation, Adriance had checked his service revolver which he unloaded at that time. When it was determined that charges would not be made, Adriance had his weapon returned to him, and prepared to go back on patrol by reloading it. Sands was still present in the room, sitting at a desk with Adriance. Adriance took one of the cartridges he was loading into his revolver, showed it to Sands, and explained that when Sands had reached under the bookcase, that Adriance had thought he was going for a weapon. Adriance further explained that such an act could have resulted in his having been shot by a police officer. According to all witnesses, including Sands, the display of the weapon and the cartridge was not in a threatening manner. Sands stated that at the time he was not afraid and did not feel threatened. It was only later when he thought about what could have happened that he became frightened.
It is clear that Adriance at all times up to the discussion with Godwin at the Key Largo substation had reasonable cause to think that Sands had been clocked by radar doing 63 MPH in a 45 MPH zone and had tried to elude him.
The evidence clearly established that Adriance did not brandish or display his service revolver in a threatening manner, but did reload it in Sands' presence which was unavoidable in the very small two room Key Largo substation. Obviously, from Sands' own testimony, he did not feel immediately threatened by Adriance's display of the pistol cartridge and explanation of how close Sands had come to serious injury.
CONCLUSIONS OF LAW
Adriance was charged with reckless displaying of a firearm, and willful mistreatment of a prisoner.
The evidence clearly indicates that no unusual force was used by Adriance to place Sands in custody.
The evidence clearly indicates that at no time was a firearm recklessly displayed.
RECOMMENDED ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Career Service Commission set aside the suspension of Adriance and grant him his back pay and attorney's fees and cost,
DONE and ORDERED this 31st day of August, 1976 in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1976.
COPIES FURNISHED:
Mrs. Dorothy Roberts Appeals Coordinator
Department of Administration
530 Carlton Building Tallahassee, Florida 32304
James T. Hendrick, Esquire
317 Whitehead Street Key West, Florida 33040
Edwin Strickland, Esquire Neil Kirkman Building Apalachee Parkway Tallahassee, Florida 32304
Docket for Case No: 76-000958
Orders for Case No: 76-000958
