STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL ) JUSTICE STANDARDS AND TRAINING C0MMISSION, )

)

Petitioner, )

)

vs. ) CASE NOS. 86-0187

) 86-0188

JACK E. YATES, and ANTHONY F. ORTIZ, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, James E. Bradwell, held a public hearing in these consolidated cases on June 13, 1986, in Fellsmere, Florida. The parties were afforded leave through July 12, 1986, to submit memoranda supportive of their respective positions. The parties' counsel have submitted proposed memoranda which was considered by me in preparation of these recommended orders. Proposed recommendations which are not incorporated in this recommended order are the subject of specific rulings in an Appendix to these recommended orders.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302

For Respondents: Robert Charles McClain, Esquire

Attorney for Respondents Suite 21, Space Office Center 1127 South Patrick Drive

Satellite Beach, Florida 32937 ISSUES PRESENTED

The issues presented for decision herein are whether or not Respondents failed to maintain the required qualifications by having good moral character and by such failure, their certifi- cation as law enforcement officers should be revoked pursuant to Section 943.1395(5), Florida Statutes.

INTRODUCTION AND BACKGROUND

Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint seeking to revoke the Law Enforcement Officer Certification of Respondent Jack E. Yates on

November 18, 1985. The complaint alleged that Respondent failed to maintain the qualifications set out in Section 943.13(7), Florida Statutes which requires an officer to have good moral character. The complaint further alleged that Respondent's certification should be revoked pursuant to Section 943.1395(5), Florida Statutes.

By its Administrative Complaint filed herein, dated November 15, 1985, Respondent also seeks to take disciplinary action against Respondent Anthony F. Ortiz, also based on the allegations that he bailed to maintain the qualifications required (having good moral character) in violation of Section 943.13(7), Florida Statutes and that his certification as a Law Enforcement Officer should also be revoked pursuant to Section 943.1395(5), Florida Statutes.

Based on a motion to consolidate, the formal hearings herein were ordered consolidated by the undersigned on March 14, 1986. The consolidated cases were scheduled to be, and were heard, on June 13, 1986. 1/

FINDINGS OF FACT

1. Based on my observation of the witnesses and their demeanor while testifying and the entire record herein, I hereby make the following relevant factual findings.

   
   

2. Respondent, Jack E. Yates, was certified by the Petitioner as a law enforcement officer on August 30, 1982, and was issued certificate number 02- 35282. (Stipulation Tr. p. 67)

   
   

3. Respondent, Anthony F. Ortiz, was certified by Petitioner as a law enforcement officer on December 3, 1984, and was issued certificate number 12- 84-002-04. (Stipulation Tr. p. 67)

   
   

4. On March 26, 1985, at approximately 8:00 p.m., Respondent Ortiz met with Respondent Yates at the "Zippy Mart" convenience store in Fellsmere. Respondent Ortiz was on duty and was working the 4:00 p.m. to 12:00 midnight shift.

   
   

5. Respondent Ortiz initiated the conversation with Respondent Yates by asking when Respondent Yates could repair Respondent Ortiz' jeep. Ortiz' jeep had been in an accident and Respondent Yates did auto paint and body work as a hobby.

   
   

6. Respondent Yates, after a brief conversation about the jeep, told Respondent Ortiz that he, (Yates) had been terminated as a Fellsmere police officer that day and that he suspected that Marion Turner, the town's vice mayor, was responsible for his termination.

   
   

7. Respondent Yates inquired if Respondent Ortiz knew where Marion Turner lived. The town of Fellsmere is approximately one mile square. Respondent Ortiz told Respondent Yates that he did and that he would direct him to Marion Turner's home. During the conversation, Respondent Ortiz asked Respondent Yates why he wished to know where the vice mayor lived and Respondent Yates stated that he wanted to talk to Vice Mayor Turner "because I want to kick his ass [sic] and get something straight with Marion Turner."

   
   

8. Respondent Ortiz, having agreed to show Respondent Yates where Mr. Turner lived, did so by having Respondent Yates follow his patrol car in his

   truck. Respondent Ortiz flashed the squad car's brake lights to indicate to Respondent Yates where Mr. Turner lived. Respondent Ortiz continued on routine patrol until he heard a report of a disturbance at Marion Turner's home on his police radio.

   
   

9. Respondent Ortiz heard Respondent Yates indicate that he was going to Marion Turner's house to straighten a matter out and while he (Ortiz) acknowledged hearing Respondent Yates state that he might have to "kick his ass sic] and get something straight with Marion Turner," Respondent Ortiz considered that that was just an idle threat and that nothing would come of Yates' remarks. 2/

   
   

10. After Respondent Ortiz showed Respondent Yates the Turner residence, Respondent Yates parked his truck behind the Turner home and got out, leaving his companions, James Spivey, Robert Carlton and William Yates (Respondent's brother) in the truck.

    
    

11. Respondent went to the front door of the Turner home

    and knocked. Inside were Marion Turner, his four year old son, Mary Turner and a neighbor/friend, Howard Ward. Mr. Turner did not expect Respondent Yates' visit.

    
    

12. Mr. Turner answered the door and saw Respondent Yates standing outside. Respondent Yates asked Turner if he could see him outside, whereupon Turner replied yes. Mary Turner was painting the trailer and had removed all of the drapes from the front windows. She therefore had a clear view of the outside. When Turner closed the door upon exiting the trailer, he was struck in the face by Respondent Yates, an altercation ensued and they struggled on the ground in front of Turner's trailer for a few minutes. Prior to Respondent Yates striking Turner, Turner had not threatened Respondent Yates.

    
    

13. As Ms. Turner exited the trailer, she found Respondent Yates on top of her husband who was struggling on the ground trying to free himself from Yates. When she suggested that violence was not the solution to their differences, Respondent Yates told her to go back inside the house or he would knock her teeth out. (Tr. p. 30)

    
    

14. Howard Ward emerged from the trailer shortly after Ms. Turner returned back inside. Mr. Turner's son, who had gone outside with his father initially, had come back inside and summoned Mr. Ward to "come out here and help. They are beating up on my daddy." Mr. Ward found Marion Turner on the ground with Respondent Yates on top of him. Mr. Ward told Ms. Turner to go inside and call the police. Respondent Yates let Marion Turner up as Ms. Turner Went inside the house.

    
    

15. Mr. Turner pointed his finger at Respondent Yates, told him he had made a mistake and that he would pay for it. Mr. Turner then turned his back on Respondent Yates and began to walk away. As he did so, Respondent Yates replied "I guess you didn't get enough of it" and struck Mr. Turner again from behind. Mr. Turner then went inside and called the Indian River Sheriff's Department and reported the incident.

    
    

16. Respondent Yates then left with his companions. A Deputy from the Indian River Sheriff's Department was summoned to the Turners' residence to take a formal report of the incident.

17. Respondent Ortiz heard the Sheriff Dispatcher dispatch the deputy whereupon he (Ortiz) called Police Chief Siegen and inquired whether or not he should go to the Turner residence to take an incident report. Police Chief Siegen instructed Respondent Ortiz to simply serve as a backup officer by waiting in the next block away from the Turner residence.

    
    

18. The Turners were not married at the time. They have since married.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

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

    
    

22. Section 943.13(7), Florida Statutes provides the minimum qualifications for law enforcement officers in Florida, to wit:

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

23. Section 94.1395(5), Florida statutes requires the Petitioner to revoke the certificate of any officer who is not in compliance with the provisions of Sections 943.13(1)-(10) . . .

    
    

24. Competent and substantial evidence was offered herein to establish that Respondent Jack E. Yates committed a battery on Marion Turner on March 26, 1985. While Respondent Yates admitted that he was angry because he was terminated from the Fellsmere police Department and that he thought that Mr. Turner was the person responsible for his termination, the evidence fails to support Respondent Yates' claim that Marion Turner was in any way responsible for Respondent Yates' termination. Based on Respondent Yates' commission of a battery on Marion Turner, such conduct constitutes a failure to maintain good moral character as required pursuant to Section 943.13(7), Florida Statutes. Respondent Yates, being a law enforcement officer charged with protecting the citizens and preserving the peace, failed to display the type trust expected of a law enforcement professional and based on his disregard for the rights of others and the preservation of peace, thereby disregarded the law. Based thereon, I shall recommend that Petitioner revoke his law enforcement certification pursuant to Section 943.1395(5), Florida Statutes.

    
    

25. Insufficient evidence was offered herein to establish that Respondent Anthony F. Ortiz failed to maintain good moral character by directing Respondent Jack E. Yates to then Vice Mayor Marion Turner's residence and thereby aided and abetted Jack E. Yates in the commission of a battery upon Marion Turner, knowing a breach of the peace was imminent. Based on the facts adduced herein, evidence reveals that Respondent Ortiz considered that Yates merely wanted to discuss the circumstances surrounding his termination with Turner and he (Ortiz) did not think that any altercation would come about as a result of his direction of Yates to Turner's resident. Finally, the words "aiding or abetting" have acquired a well understood meaning in the context of criminal law. To be

convicted or found to be an aider or abettor, it must be demonstrated, not only that Ortiz assisted, but that he intended to participate in the perpetration of the battery in question. J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979); Chaudoin v. State, 362 So.2d 298 (Fla. 2d DCA 1978). The facts herein failed to provide any basis to support such a conclusion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Jack E. Yates' certificate number 02-35282 be REVOKED.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed herein against Anthony F. Ortiz be DISMISSED.

DONE and ORDERED this 13th day of August, 1986, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1986.

ENDNOTES

1/ Respondent's Motion to Dismiss the Administrative Complaints was denied. Also, Petitioner's Motion to Relinquish Jurisdiction and remand the matter to Petitioner for proceedings pursuant to Section 120.57(2), F.S. was denied.

2/ The testimony concerning what Respondent Ortiz knew would happen or that there would be an altercation between Respondent Yates and Marion Turner is contradictory. In an affidavit appended to a Motion to Dismiss the Administrative Complaint, Respondent Ortiz, when asking Respondent Yates why he wanted to know where Turner lived was told "because I want [sic] to kick his ass or get something straight . . . " During the hearing, Respondent Ortiz, while admitting that Respondent Yates remarked with words strikingly similar, considered that nothing would come of Yates' remarks and that he (Ortiz) was an alert police officer (Tr. 127-8). Based on Respondent Ortiz' testimony during the hearing (who appeared credible and straightforward), it is concluded that Ortiz did not consider that a breach of the peace was imminent or that Respondent Yates and Vice Mayor Turner would do anything other than discuss Yates' termination.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0187

Petitioner' s Memorandum

Proposed Findings of Fact

Paragraph 9. Rejected based on other credible evidence which reveals that Respondent Ortiz considered that no altercation would come about as a result of his directing Respondent Yates to Marion Turner's home.

Respondent' s Memorandum

Paragraph 6 c. Rejected. Contrary to other credited competent and substantial record evidence.

Paragraph 6 f. Rejected. Irrelevant to a determination of issues presented.

Paragraph 6 g. Rejected as to Respondent Yates based on competent and substantial record evidence proving Yates committed a battery on Marion Turner without justification. Proposed Recommendation

Rejected as to Yates based on the credited record evidence.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0188

Petitioner' s Memorandum Proposed Findings of Fact

Paragraph 10. Rejected based on other credible evidence which reveals that Respondent Ortiz considered that no altercation would come about as a result of his directing Respondent Yates to Marion Turner's home.

Proposed Conclusions of Law

Paragraph 3. Rejected as contrary to other competent substantial evidence.

Paragraph 4 Rejected as contrary to other credited, competent, substantial evidence.

Paragraph 5. Rejected as contrary to other credited, competent, substantial evidence. Also no showing that Respondent Ortiz intended to actively participate or assist in the commission of a crime.

Paragraph 7. Rejected. Insufficient basis to conclude that Respondent Ortiz engaged in misconduct, as alleged.

Paragraph 8. Rejected for reasons stated in paragraph next above. Respondent's Proposed Findings of Fact

Paragraph 6 c. Rejected. Irrelevant to a determination of the issues posed herein.

Paragraph 6 e. Rejected. Contrary to other credited competent and substantial record evidence.

Paragraph 6 f. Rejected. Irrelevant.

Paragraph 6 g. Rejected as to Respondent Yates based on credited, competent and substantial record evidence.

COPIES FURNISHED:

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

Jack E. Yates

Post Office Box 256 Fellsmere, Florida 32948

Anthony F. Ortiz

163 S. Elm Street Fellsmere, Florida 32948

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Janet E. Ferris, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Daryl G. McLaughlin Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 86-000187

Orders for Case No: 86-000187