STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6813

)

LLOYD H. SISK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 27, 1990, in Port Charlotte, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

P. O. Box 1489

Tallahassee, Florida 32302

For Respondent: Kevin C. Shirley, Esquire

126 East Olympia Avenue Punta Gorda, Florida 33950

STATEMENT OF THE ISSUES

The issue is whether respondent's law enforcement certification should be disciplined for the reasons stated in the administrative complaint.

PRELIMINARY STATEMENT

By an administrative complaint filed on September 28, 1989, petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Commission, charged that respondent, Lloyd H. Sisk, certified as a law enforcement officer, had violated Subsections 943.1395(5) and (6), Florida Statutes (1989), and Rule 11B-27.0011(4)(a), Florida Administrative Code (1989). More specifically, the complaint, as amended, alleged that between December 1986 and February 1988 respondent committed a lewd and lascivious act in the presence of a minor by exposing his penis and masturbating, and that he unlawfully handled, fondled or made an assault upon a female child under sixteen years of age by fondling the child's breast and rubbing her vaginal area. The complaint alleged further that, by engaging in the foregoing conduct, respondent failed to maintain the qualifications established in Section 943.13(7), Florida Statutes (1989).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on December

12, 1989, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated January 3, 1990, a final hearing was scheduled on March 21 and 22, 1990 in Port Charlotte, Florida. Upon request of petitioner, the matter was rescheduled to June 12 and 13, 1990, and then again to June 27, 1990, at the same location.

At final hearing petitioner presented the testimony of Fred Scott, James G. Chatham, II, Gary Crisman, Leron Marcey, Pamela Christenson, Janis L. Cook, Cathy M. Cook and the alleged victim, S. C., whose initials will be used.

Respondent testified on his own behalf and presented the testimony of Kenneth Barton, Richard Austin, Brenda Sisk, Jeffrey Sean Sisk, and Dierdra Marie Sisk.

The transcript of hearing (two volumes) was filed on July 18, 1990.

Proposed findings of fact and conclusions of law were filed by petitioner and respondent on August 3 and 6, 1990, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Base upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Lloyd H. Sisk, held law enforcement certificate number 2252 issued by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training

   Commission (Commission). Respondent has held his license since April 3, 1971. When the events herein occurred, Sisk was employed as a detective with the Charlotte County Sheriff's Department.

   
   

2. The charges against respondent are based upon an allegation of sexual abuse lodged against him by his niece, S. C., who is now seventeen years of age. The abuse allegedly occurred between December 1986 and February 1988. To place this controversy in proper perspective, a brief discussion of the living arrangements in the Sisk household is appropriate. In 1983 respondent, his wife, Brenda, and Brenda's mother (grandmother) decided to jointly purchase a home in Port Charlotte, Florida. Also residing with the Sisks were their teen-age son, Jeffrey, and the alleged victim. The grandmother had been given legal custody over the alleged victim, who was the daughter of Janis, Brenda's sister. Janis lived in Pinellas County, but because of various legal and personal problems, she had relinquished custody of her daughter to the grandmother shortly after S. C.'s birth. In late 1986, and over the objections of the grandmother and alleged victim, the Sisks decided to sell the home. This in turn engendered antagonism and animosity between the members of the family component and eventually culminated in the sexual abuse charges being made.

   
   

3. The home was finally sold in February 1988, or more than a year later. Before the sale occurred, the Sisks advised the grandmother and alleged victim that, because of constant friction, the grandmother and S. C. would not live with the Sisks and their son when they relocated to a new home. At almost the same time the sale took place, S. C. began making sexual abuse allegations against respondent. In this regard, the testimony is sharply conflicting.

   In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence.

   
   

4. The allegations first surfaced on an undisclosed date in February 1988 when S. C. told her sixteen year old boyfriend, James, that respondent had

   touched her breasts, buttocks and vaginal area while giving her back massages and had put a condom on his penis while in her presence. On February 17, 1988,

   S. C. telephoned her mother in Pinellas County and said respondent had been coming home in the afternoon and asking to give her backrubs. The alleged victim further complained that, during those backrubs, respondent was "rubbing her butt and in between her legs". That same day, S. C. told her grandmother that respondent had touched her breasts, buttocks and vaginal area while giving her backrubs. Three days later, S. C.'s mother, while in an intoxicated state, telephoned the Largo Police Department and relate the abuse allegations to a detective. That led to an investigation by the Charlotte County Sheriff's Office and the eventual filing of criminal charges by the state attorney and sexual abuse charges by the Department of Health and Rehabilitative Services (HRS). 1/

   
   

5. At final hearing, the former boyfriend, grandmother and natural mother related the allegations described in the previous finding of fact. In addition, statements made by S. C. to an HRS counselor were offered into evidence. Finally, the alleged victim gave her version of what transpired. This included a rather graphic account of respondent, while in the presence of S. C., placing a condom on his penis and masturbating, and after attaining an erection a few minutes later, positioning his body next to S. C. and demonstrating various coital positions to his niece.

   
   

6. The testimony of the alleged victim is not accepted as being credible for a number of reasons. To begin with, S. C. was extremely upset with respondent because the family home was being sold and she had been told that she could not remain with the Sisks. Her animosity towards respondent is also evidenced by the fact that, just prior to final hearing, she encouraged her mother (Janis) to "slam him (respondent)" with her testimony. It is also noted that the alleged victim's testimony at hearing differed in several material respects with the complaints she made to the Commission, HRS and in prior court testimony. Finally, the testimony of Lloyd, Brenda and Jeffrey Sisk, which is accepted as being credible, demonstrated numerous inconsistencies in S. C.'s testimony. Accordingly, it is found that respondent did not commit a lewd and lascivious act in the presence of his niece by exposing his penis and masturbating, and he did not handle her breasts, buttocks and vaginal area as alleged in the administrative complaint.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

8. Because respondent's law enforcement certification is at risk, petitioner is obliged to prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. The more credible and persuasive evidence supports a conclusion that the allegations in the complaint are not true. This being so, the administrative complaint should be dismissed, with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida.

DONALD R. ALEXANDER

Heading Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990.

ENDNOTES

1/ Both of these matters have been resolved in respondent's favor.

APPENDIX

Petitioner:

1. Partially adopted in finding of fact 1.

2. Partially adopted in finding of fact 2. 3-7. Rejected as being unnecessary.

8-31. Rejected as not being credible. 32-33. Rejected as not being necessary. 34-40. Rejected as not being credible. 41-42. Rejected as not being necessary.

43-48. Partially adotped in finding of fact 4. 49-51. Rejected as not being credible.

52-56. Partially adopted in finding of fact 4. 57-59. Rejected as being unnecessary.

60-69. Partially adopted in finding of fact 4. 70-76. Rejected as being unnecessary.

77-83. Partially adopted in finding of fact 5.

84. Rejected as being unnecessary.

Respondent:

1-16. Partially adopted in findings of fact 1-6.

Note - Where a finding has been partially used, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Joseph S. White, Esquire

P. O. Box 1489 Tallahassee, FL 32302

Kevin C. Shirley, Esquire

126 East Olympia Avenue Punta Gorda, FL 33950

Jeffrey Long, Director Criminal Justice Standards Training Commission

P. O. Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner Florida Department of Law Enforcement

P. O. Box 1489 Tallahassee, FL 32302

Docket for Case No: 89-006813

Orders for Case No: 89-006813