vs. ) Case No. 86-3790
Respondent. )
This matter came on for hearing in Eustis, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on March 26, 1987. The Division of Administrative Hearings received the transcript of proceedings on April 15, 1987. Respondent Moore appeared on his own behalf.
Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302
By administrative complaint dated September 4, 1986, petitioner alleged that it had certified respondent on October 2, 1968, and "issued Certificate Number 10-2-68-G"; that " [o]n or about September 14, 1985, the Respondent . .
. did unlawfully solicit, encourage or request Christina Hechler to" possess cocaine; that cocaine is "named or described in Section 893.03, Florida Statutes"; that respondent's alleged solicitation, encouragement or request of another to possess cocaine "did violate the provisions of Section 943.1395(5), Florida Statutes, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character"; and that respondent's certificate should be revoked on that account.
Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G.
Prologue
Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984.
One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms.
Hechler's telephone number.
In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45)
On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60)
The First Investigation
But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting.
The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88)
Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92).
The Second Investigation
On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations.
Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore."
Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange
for the sex act there would be an exchange of cocaine. (T.8)
The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985.
September 14-15, 1985
Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs."
Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van
"believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was
And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect.
He asked her again, "Do you want to buy
some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . .
The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now.
And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77)
At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84)
Epilogue
On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
CONCLUSIONS OF LAW
The Criminal Justice Standards and Training Commission has authority to revoke the certification of law enforcement officers whom it has certified, Section 943.12 (3), Florida Statutes (1986 Supp.), and who are "not in compliance with the provisions of Section 943.13(1)-(10)." Section 943.1395(5), Florida Statutes (1986 Supp.).
Section 943.13(7), Florida Statutes (1986 Supp.), requires that certified persons "[h]ave a good moral character as determined by a background investigation under procedures established by the Commission." The record is silent as to whether the Commission has established such procedures and, if so, what they may be.
Here the Commission pleaded only certain conduct on or about September 14, 1985, as the basis for revocation of certification. Since "charges respecting revocation of a license must be `particularly and specifically stated," Davis v. Department of Professional Regulation, 457 So.2d 1074, 1076 (Fla. 1st DCA 1984) quoting Bowling v. Department of Insurance, 394 So.2d 165,
171 (FLa. 1st DCA 1981), matters coming out at hearing which were not pleaded in the administrative complaint do not afford a lawful basis for disciplinary action. Due process forbids predicating discipline on facts not pleaded. Wray
v. Department of Professional Regulation, Board of Medical Examiners, 435 So.2d
312 (Fla. 1st DCA 1983).
License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,
491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st
DCA 1979)(reh. den. 1980), and strict procedural protections apply. The prosecuting agency has the burden of proof, Associated Home Health Agency, Inc.
v. State Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. 1st DCA 1984), which is apparently to prove its case clearly and convincingly. See generally Addington v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, etc., 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). But see Turlington v. Ferris, No. BH-37 (Fla. 1st DCA; Oct. 2, 1986) 496 So.2d 177 rev. pending sub nom. Ferris v. Turlington, No. 69,561 (Fla.; n/a Oct. 31, 1986). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA, 1981), in the evidence, unless applicable statutes and rules create the duty clearly. Id.
The administrative complaint charges that respondent violated the law on or about September 14, 1985, by "solicit[ing], encourag[ing] or request[ing] Christina Hechler to" possess cocaine. The subtlety of the charge, solicitation to possess, does not compensate for the flimsiness of the evidence.
Although no tape recordings were offered, Agent Farney's account of the conversation has been credited. But the conversation he reported fails clearly and convincingly to establish solicitation. The laughter, the repetition, the lack of "follow up" are all consistent with an attempt at humor by respondent, who had just raised the possibility that the conversation was being monitored.
In closing argument, respondent Moore, who appeared pro se and did not testify, maintained:
And this conversation was made in jest.
Many times when Miss Hechler and I would get together in those-meetings, I would ask her, "Who are you working for?"
We had a little joke, "Who are you working for?" And she would say something like,
"FBI, CIA, MBI" and what have you. We had that little joke that we carried on every time when we'd meet.
And on this particular occasion I asked her, I says, "Who?" On the way out to the parking lot, she says, "Actually what we're doing is working undercover." Her voice mumbled, she said it very low. And I said, "Oh, yeah, where's the bug?"
* * *
I thought she was joking. She pointed to her purse. I said, "Oh, yeah, you want to
buy some coke?" And she says, "Huh?" And I said, "Do you want to buy some coke?" And I said that twice.
I have never at any time in my life had any cocaine in my hands that didn't belong to the Orlando Police Department, or that I had taken from someone and I was putting it into evidence.
I have never delivered any cocaine to
anyone. I have never made a serious offer to deliver any cocaine to anybody, and I've never had any in my possession.
(T. 120-121)
Of course, argument is not evidence, and can support no finding of fact. But the credible evidence adduced as to events on or about September 14, 1985, is fully consistent with respondent's argument.
That petitioner dismiss the administrative complaint.
DONE and ENTERED this 22nd day of May, 1987, at Tallahassee, Florida.
Hearing Officer ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1987.
Robert R. Dempsey, Executive Director Department of Law Enforcement
Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Mr. Charles Moore
