STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3707

)

KENNETH E. BECK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida on March 5, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elsa Lopez-Whitehurst, Esquire

Florida Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

For Respondent: Was not present and

was not represented. STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent's certification as a law enforcement officer in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint and the Amendments thereto file in this case.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 8, 1990, the Petitioner alleged that on September 3, 1988, the Respondent, while on official duty, conducted a visual search of a 16 year old female during which he arranged to observe her nude breasts and pubic area, and on April 16, 1989, again while acting as a police officer, during the course of an interview, intentionally touched a 17 year old female in the pelvic area and on the buttocks. On March 16, 1990, Respondent disputed the above allegations and requested a formal hearing. By Notice of Hearing dated July 6, 1990, the undersigned set the case for hearing in Clearwater on September 7, 1990. However, by letter dated July 9, 1990, Respondent's counsel notified both the Respondent and counsel for Petitioner that he was no longer serving as counsel for Respondent. The original Administrative Complaint was sent to Respondent at his address then known, 28

Valencia Avenue, Safety Harbor, Florida, and Respondent's election of rights, submitted by Respondent in response, reflected that as his address.

The September 7, 1990 hearing in Clearwater was cancelled prior to being convened, and counsel for Petitioner, on October 4, 1990, advised she was unable to contact Respondent but wanted to amend the Administrative Complaint. That request was granted and on November 19, 1990, Petitioner amended the Complaint to allege that on April 10, 1990, Respondent sent a death threat to his former mother-in-law and her family, and a copy of this Amended Complaint was furnished to the Respondent at his Valencia Avenue address.

Petitioner again amended the Complaint on or about February 19, 1991, to allege that on October 30, 1990, Respondent indecently exposed himself at the Clearwater Mall, and, as in previous cases, a copy of this amendment was mailed to the Respondent at his Valencia Avenue address. The Respondent failed to acknowledge either the Notice of Hearing or either of the Amended Complaints.

The Valencia Avenue address was the only address the Petitioner had for Respondent. Neither the Complaint nor the amendments thereto were returned by the Post Office for lack of delivery.

In addition, Petitioner's counsel indicated that several days prior to the hearing, a notice of the hearing was left with the Respondent's parents at their address in Melbourne, Florida. This notice contained the time, date and place of the hearing. Though the Hearing Officer waited 30 minutes past the scheduled convening time before starting the hearing, Respondent failed to appear or have anyone present to represent him.

Petitioner called 9 witnesses and introduced Petitioner's Exhibits 1 through 8. Respondent presented no evidence. A transcript was provided and Petitioner submitted Proposed Findings of Fact which are approved and, as pertinent, have been incorporated into this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department.

   
   

2. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides.

   In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen.

   Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers.

   
   

3. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not

   touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms.

   Horten his card, with his name on it, and went back outside to talk to the other young people.

   
   

4. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath.

   
   

5. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him.

   
   

6. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented.

   While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior.

   
   

7. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home.

   
   

8. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the

   letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him.

   
   

9. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench.

   
   

10. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her.

    She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional.

    
    

11. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

13. In the allegations contained in the Administrative Complaint filed herein, the Commission has alleged that by conducting himself inappropriately in his official relationship with two young females, Respondent demonstrated he is not of good moral character as is required in Section 943.13(7), Florida Statutes, which provides that a person employed as a full time law enforcement officer shall be of good moral character.

    
    

14. In its first amendment to the Administrative Complaint, the Commission alleged, additionally, that the Respondent's composition and sending of a letter containing a threat to kill to Mrs. Frattaruolo and her family also constitutes a lack of good moral character, as does his exposing himself in a public place, as is alleged in the second amendment to the Administrative Complaint.

15. The Department has defined good moral character in Rule 11B-27.001, F.A.C., where, at subsection (b) it has determined that the perpetration by a certified officer of an act which would constitute any of [the enumerated] misdemeanor or criminal offenses, whether criminally prosecuted or not, constituted bad moral character.

    
    

16. The burden of proof in this case is upon the Petitioner to establish by clear and convincing evidence that the Respondent has committed the offenses alleged and is not of good moral character, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. Here, it is concluded that the Respondent's clearly established unauthorized, inappropriate touching of young, female alleged traffic offenders, his threat to kill, and his repeated incidents of indecent exposure of his private parts in a public place are all violations of various sections of the Florida criminal statutes. Therefore, his conduct as outlined in the Administrative Complaint and the amendments thereto, as supported by the uncontroverted evidence of record, clearly and convincingly leads to the inescapable conclusion that Respondent is not of good moral character.

    
    

18. In Rule 11B-27.001(1), F.A.C., the Department has indicated the Commission's empowerment to administer the certification process for law enforcement officers:

    
    

    ... for the protection and well-being of those persons relying upon certified law enforcement, ... officers for the perfor- mance of public trust within the State.

    
    

19. Under the provisions of Section 943.1395(5), Florida Statutes, the Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes. Under the provisions of subsection (6) of the former statute, when the Commission finds that a certified officer has not maintained good moral character, it may enter an order imposing alternative penalties in lieu of revocation of certification.

    
    

20. Here, however, in light of the blatant misconduct demonstrated by the Respondent, which is neither explained nor justified, and in light of the Commission policy statement found in Rule 11B-27.001, F.A.C., it is clear the only appropriate action the Commission can take in this case is the removal of the his certification.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer.

RECOMMENDED this 29th day of April, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 29th day of April, 1991.

COPIES FURNISHED:

Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Kenneth E. Beck

28 Valencia Circle

Safety Harbor, Florida 34695

James T. Moore Commissioner

Florida Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Jeffrey Long Director

Criminal Justice Standards and Training Commission

P.O. Box 1489

Tallahassee, Florida 32302

Rodney Gaddy General Counsel FDLE

P.O. 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 90-003707

Orders for Case No: 90-003707