STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2970

)

STEPHEN P. ROLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 26, 1985, 1/ in Hollywood, Florida.

APPEARANCES

For Petitioner: Robert Rand, Esquire and

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Steven L. Sommers, Esquire

1271 LaQuinta Drive

Orlando, Florida 32809

ISSUE

The issue presented for decision herein is whether or not the Respondent has failed to maintain the qualifications which require an officer to have good moral character as is specifically set forth in section 943.13(7), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

1. Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Amended Administrative Complaint seeking to revoke the law enforcement certification of Respondent, Stephen P.

   Roland, on December 19, 1984. The Complaint alleged in material part that the Respondent had failed to maintain qualifications set forth in section 943.13(7) which requires an officer to have good moral character and that his failure to maintain those qualifications amounts to a derivative violation of section 943.1395(5), Florida Statutes.

   
   

2. Respondent was certified by the Criminal Justice Standards and Training Commission on March 8, 1979, and was issued Certificate Number 99-02439.

   
   

3. Respondent was assigned to assist as an undercover officer in the investigation of the Cheetah III lounge conducted by the Broward County Chief's Anti-Racketeering Unit during the month of May, 1982. The investigation was initiated to obtain evidence of criminal violations involving controlled substances and beverage laws within the lounge, whose business was the sale of alcohol and exhibition of nude female dances. There were approximately 8 officers involved in the investigation and Respondent was under the supervision of Beverage Agent Patrick Roberts. At the outset of the investigation, Roberts directed Respondent and those under his supervision to refrain from personal involvement with the dancers and to restrict his interaction with them inside the lounge. Roberts further instructed Respondent to file reports with him detailing the information obtained and from whom it was obtained on a daily basis.

   
   

4. Respondent's initial reports, which began on May 26, 1982, mention a dancer, Beverly Kapilow. At the outset of the reporting period, Respondent mentioned that Kapilow committed criminal beverage violations. As example, during the June 1, 1982 report, Beverly was mentioned by Respondent as engaging in an act of solicitation. From approximately June 15, 1982 through approximately July 11, 1982, the date the investigation ceased, Respondent failed to mention any violations by Kapilow. Prior to June 15, 1982, Kapilow had only told Respondent basic information about who, among the employees, sold or used controlled substances.

   
   

5. Some 3 or 4 weeks into the investigation, Agent Roberts became concerned that the Respondent frequented the lounge too often and instructed him to limit his visits to 3 times per week and 1 to 2 hours per visit. In spite of this order, the Respondent continued to visit the lounge frequently and, while there, spent 6 to 8 hours per visit.

   
   

6. Respondent spent excessive amounts of investigative funds in the lounge as the investigation continued however he was not told to cease or cut back on such expenditures.

   
   

7. Respondent was allowed to stay in a hotel, away from his residence, to conceal his identity. While at the motel, Kapilow visited Respondent. She was observed by Sergeant J. Casper, a Sergeant with the Broward County Sheriff's Office in excess of 10 years and who served as Respondent's partner and backup officer during the investigation. Casper observed the Respondent and Kapilow involved in "heavy petting" while both were dressed only in underwear.

   
   

8. Respondent and Kapilow obtained a motel room together for social reasons during the course of the investigation. Additionally, Respondent and Kapilow had a number of dates at motels for social reasons only.

   
   

9. Respondent became socially and emotionally involved with Kapilow during the investigation. When the two started dating, Respondent advised his supervisors, including William McCarthy who headed the Cheetah III lounge

   investigation of his relationship with Beverly Kapilow. (Testimony of Respondent and Casper) When Respondent advised his supervisors of his relationship with Kapilow, he was told to "let your conscience be your guide." (Testimony of Respondent) Additionally, Respondent related his involvement with Kapilow to Chief McCarthy and Captain Ewing who acted as supervisors of the Cheetah III lounge undercover investigation. 2/

   
   

10. Respondent attended a meeting with Assistant State Attorney Jaffe after the investigation was concluded and requested that Kapilow not be formally charged with any criminal violations because she became aware of his identity as a police officer during the investigation and protected his undercover status and because she had been an informant. Respondent offered reasons for his request on behalf of Kapilow and his partner, Sergeant Casper, was of the opinion that Beverly Kapilow was merely a bystander and not really involved in any illegal schemes and/or activities which were ongoing at the Cheetah III lounge. Additionally, Sergeant Casper determined that Kapilow was not a principal in the investigation and there was no problem with Respondent's involvement with Kapilow as "I saw the situation." (Testimony of Casper)

    
    

11. During an internal affairs investigation conducted by Lt. Tom Hill, a police officer with the town of Davie and an internal affairs investigator since approximately 1983, Respondent was interviewed as were number of witnesses including officers and supervisors involved in the Cheetah III lounge including Respondent's partner, Agent Casper. Lieutenant Hill's investigation was to determine whether or not Respondent's involvement with Kapilow made his credibility open to question resulting in a compromise of the Cheetah III lounge undercover investigation.

    
    

12. Lieutenant Hill noted that Respondent admitted having a social and emotional relationship with Beverly Kapilow and indicated that he thought he would "move in with her."

    
    

13. Both Respondent and Sergeant Casper determined that Lieutenant Tom Hill's internal affairs investigation of Respondent was biased and lacked objectivity. Casper determined that Lieutenant Hill was motivated by ulterior reasons and had developed an attitude to go after the Respondent. Casper determined that Lieutenant Hill was very opinionated and Hill was upset at the investigation results and that the raid of the Cheetah III lounge which occurred on July 12, 1982 was unsuccessful. An examination of Lt. Hill's investigation report reveals that his conclusions were not objective.

    
    

14. Respondent, Stephen P. Roland, was a police officer from March, 1979 to September, 1983. When he was assigned to the anti-drug task force and participated in the undercover investigation of the Cheetah III lounge, he was told to go in and compile whatever charges he could against the licensee. When Respondent asked how far an undercover agent could go with dancers, he was told to "let your conscience be your guide." Respondent reported his involvement with Beverly Kapilow, as stated earlier, to Sergeant Roberts, Chief McCarthy, and Sergeant Casper, and denied dismissing any charges against Kapilow. Respondent admits that he advised Assistant State Attorney Jaffe that one of the charges being contemplated against Kapilow "bordered on entrapment" and considered that the remaining charges were merely technical and not worthy of filing. Finally, Respondent denied doing anything as relates to the Cheetah III lounge and his involvement therewith to undermine the investigation of that lounge.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1) Florida Statutes.

    
    

16. The parties were duly noticed pursuant to the notice provisions of chapter 120, Florida Statutes.

    
    

17. The authority of the Petitioner is derived from Chapter 943, Florida Statutes.

    
    

18. Respondent, a certified law enforcement officer, is subject to the disciplinary guides of chapter 943, Florida Statutes.

    
    

19. Section 943.1395(5) , Florida Statutes, requires the Commission to revoke the certification of any officer who is not in compliance with the provisions of sections 943.13(1) through (10), Florida Statutes. In this regard, Respondent is charged with violating section 943.13(7), which requires that a law enforcement officer in Florida "have a good moral character," as determined by the background investigation under procedures established by the Commission.

    
    

20. Respondent is charged with having become sexually involved with a female dancer who was one of the principals of an investigation; that he dated the subject several times while off- duty and, despite specific instructions from a case agent to avoid contact with said dancer, he continued to do so and that Respondent misrepresented information to a prosecutor assigned to the case referring that the female subject had acted as an informant during the investigation. (Paragraph 2 of the Amended Administrative Complaint) What the evidence shows is that the Respondent became involved with a dancer; however, there is insufficient evidence to establish that the Respondent was either sexually involved with that dancer or that she was a principal of the investigation here involved of the Cheetah III lounge. Likewise, there was no evidence which tended to establish that the Respondent dated the subject several times while off-duty despite instructions from the case agent to avoid contact with said dancer. To the contrary, Respondent made his activities as relates to dating the female dancer involved and he was told to "let his conscience be his guide." Finally, there was no competent and substantial evidence offered herein to establish that Respondent misrepresented information to a prosecutor which inferred that the female subject acted as an informant during the investigation. What the evidence shows is that the Respondent gave his reasons as to why the female subject involved should not be charged with any criminal activity and those reasons appear justified in the circumstances. Moreover, the prosecutor assigned to the case had the authority to either proceed with those charges or dismiss them as the situation warranted. This is not the kind of activity which warrants disciplinary action against a law enforcement officer as alleged in paragraphs 2 and 3 of the Amended Administrative Complaint filed herein pursuant to the authority of sections 943.1395(5) and 943.13(7), Florida Statutes.

    
    

21. In proceedings such as this, involving the loss of a valuable professional position and is dependent upon the application of such broad general terms as "good moral character as determined by an investigation," the courts have held that "the critical matters in issue must be shown by evidence which is indubitably `substantial' as the consequences show." Bowling v. Department of Insurance, 394 So. 2d 165, 172 (Fla. 1st DCA 1981). A review of the evidence introduced herein reveals no substantial evidence which satisfies

the requirement of the rule that Respondent failed to maintain minimum qualifications for a law enforcement officer in Florida or that he did not have a good moral character as determined by an investigation as contemplated by section 943.13(7), Florida Statutes. As noted in Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984), the Court noted that the Board did not offer any direct proof of improper, premarital sexual conduct.

The Court went on to note that one's presence as an overnighter, or even a month- long guest in the residence of another of the opposite sex, provides nothing beyond supposition to reflect upon that person's morality. Likewise, Respondent's dating the subject several times while off-duty were matters which were brought to the attention of his superiors and he was not instructed to refrain therefrom. Finally, the evidence failed to substantiate the Petitioner's allegations that Respondent misrepresented information to a prosecutor. The credible evidence herein proves just the opposite.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Amended Administrative Complaint filed herein be dismissed in its entirety.

RECOMMENDED this 17th day of July, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 18th day of July, 1985.

ENDNOTES

1/ The parties were afforded leave through June 5, 1985 to submit proposed memoranda supportive of their respective positions. Petitioner's counsel has submitted a proposed recommended order which was considered by me in preparation of this Recommended Order. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

2/ Petitioner's counsel contends that the emotional relationship between Respondent and Kapilow was unknown to them until after the investigation was terminated on July 12, 1982. Contrary to this contention, evidence reveals that Agent Roberts and his superiors, including Agent Casper and Chief McCarthy, who headed the investigation, were aware of Respondent dating Kapilow and according to Sergeant Roberts, McCarthy approved the dating on one or two occasions. (Cross-examination testimony of Sergeant Roberts)

COPIES FURNISHED:

Robert Rand, Esquire Joseph White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Daryl McLaughlin Executive Director

Criminal Justice Standards and Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

Steven L. Sommers, Esquire 1271 LaQuinta Drive

Orlando, Florida 32809

Docket for Case No: 84-002970

Orders for Case No: 84-002970