STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE No. 89-6708

)

MICHAEL J. TAVALARIO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 17, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Sharon Larson, Esquire

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

For Respondent: Michael J. Tavalario, Pro Se

270 Southeast Second Avenue Pompano Beach, Florida 33060

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint seeking to take disciplinary action against Respondent, a certified law enforcement officer, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Joel Myers, William Updegraff, Donald Leake and Ted Thomas. Additionally, Petitioner's exhibits numbered 1-4 were admitted in evidence. The Respondent testified on his own behalf.

Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida.

   
   

2. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m.

   
   

3. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent.

   
   

4. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated.

   
   

5. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port.

   
   

6. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff.

   
   

7. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house.

   
   

8. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate.

   
   

9. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated.

   
   

10. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen.

    
    

11. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door.

12. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds.

    
    

13. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him.

    As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent.

    
    

14. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop.

    
    

15. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back.

    Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground.

    
    

16. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that."

    
    

17. As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant.

    
    

18. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene.

    
    

19. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest.

    
    

20. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

22. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida. Subsection (7) provides that any person employed as a law enforcement officer must have good moral character.

23. Section 943.1395(5), Florida Statutes, provides that the Criminal Justice Standards and Training Commission "...shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10)...

    ." Section 943.1395(6), Florida Statutes, authorizes the Commission to impose lesser penalties than revocation of certification upon finding "...that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard. "

    
    

24. The Administrative Complaint filed in this cause alleges that Respondent violated the provisions of Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character. Rule 11B-27.0011(4)(b), Florida Administrative Code, provides as follows:

    
    

    For the purposes of the Commission's implementation of any of the penalties enumerated in Subsection 943.1395(5) or (6), a certified officer's failure to maintain good moral character, as required by Subsection 943.17(7), is defined as:

    * * *

    (b) The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not.

    
    

    One of the sections listed in Subsection (b) is Section 784.03, Florida Statutes. That Section defines a battery as the actual and intentional touching or striking of another person against the will of that other person.

    
    

25. Petitioner has proven by clear and convincing evidence that on March 4, 1987, Respondent unlawfully, actually, and intentionally touched or struck Hensen against Hensen's will. The Respondent was not in danger, Hensen was offering no resistance, and the use of force by the officer was not justified. Accordingly, Petitioner has proven that Respondent violated the provisions of Section 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, in that Respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character.

    
    

26. Section 943.1395(6), Florida Statutes, sets forth penalties which may be imposed, in lieu of revocation of certification, by the Commission upon a finding that a certified officer has not maintained good moral character. It has been determined that there was no justification for Respondent's use of any force, let alone the use of repeated punching. When Respondent arrived on the scene, Hensen was sitting with his hands on the dash of the car. He had already given his driver's license and registration to Leake and was being cooperative with Leake. It is shocking that a law enforcement officer would approach a stopped vehicle and commence beating the driver. Respondent expressed no remorse for his conduct at the final hearing, continuing to maintain that he used the amount of force necessary to effectuate an arrest. In fact, Respondent testified that he would do the same thing again if the incident were repeated. Respondent should not be given an opportunity to exhibit the same conduct.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida.

DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708

1. Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause.

   
   

3. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order.

   
   

4. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument.

   
   

5. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause.

COPIES FURNISHED:

Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael J. Tavalario

270 Southeast Second Avenue Pompano Beach, Florida 33060

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, Esquire General Counsel

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-006708

Orders for Case No: 89-006708