STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-3463
)
ROBERT J. RUDOCK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on March 17, 1992, in West Palm Beach, Florida, and on March 19, 1992, in Pompano Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Gina Cassidy, Esquire
Assistant General Counsel Florida Department of Law
Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
For Respondent: Robert J. Rudock, pro se
801 South Federal Highway, #316 Pompano Beach, Florida 33062
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On July 13, 1990, Petitioner filed an Administrative Complaint against Respondent which contained the following allegations:
Respondent was certified by the Criminal Justice Standards and Training Commission on January 22, 1981 and was issued Certificate Number 02-26745.
On or about July 11, 1987, Respondent, Robert J. Rudock, did then unlawfully and while on duty as a Pompano Beach Police Officer,
remove a female person from the protective custody at the Pompano Beach Police Department, transport the female person to a motel and thereafter engage in sexual intercourse with her.
The actions of the Respondent did violate the provisions of Section 943.1395(5),(6), Florida Statutes and Rule 11B-27.0011(4)(c), Florida Administrative Code, 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.
This Administrative Complaint is issued pursuant to Sections 120.60, and 943.1395(5), (6), Florida Statutes. Any proceedings concerning this Complaint shall be conducted pursuant to Section 120.57, Florida Statutes, and Chapter 11B-27, 28-1, 28-5, and 28-6, Florida Administrative Code.
WHEREFORE, it is alleged that the Respondent, Robert J. Rudock, is guilty of violating Sections 943.1395(5),(6), and 943.13(7),
Florida Statutes and Rule 11B-27.0011(4)(c), Florida Administrative Code.
Respondent thereafter requested a formal hearing on the allegations made against him. On June 3, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested. Following two continuances, the hearing was finally held.
At hearing, Petitioner presented the testimony of six witnesses: Richard Hall, a City of Pompano Beach firefighter/EMT; Michael Kane, a City of Pompano Beach firefighter/paramedic; Charles Nickert, the assistant general manager of the Pompano Beach Holiday Inn; Richard D'Agostino and Leon Walton, two City of Pompano Beach police officers; and Gary Ciani, a private investigator.
Petitioner also offered three exhibits into evidence, all of which were received by the Hearing Officer. Among these exhibits was a transcript of the sworn testimony Katrina Lynn Turner, the "female person," referenced in paragraph 2 of the Administrative Complaint, 1/ gave before the City of Pompano Beach Employee Board of Appeals during the hearing on Respondent's appeal of his dismissal from employment as a police officer with the City. 2/
Respondent testified on his own behalf at the hearing held in the instant case. The only other evidence he presented was a transcript of a taped statement D'Agostino gave to Walton on August 14, 1987, which was offered jointly by both Respondent and Petitioner and received into evidence by the Hearing Officer as a joint exhibit.
After being advised by the parties that they had no further evidence to present, the Hearing Officer closed the evidentiary portion of the final hearing on March 19, 1992. He subsequently announced on the record that the parties had
20 days from the date of the Hearing's Officer's receipt of the hearing transcript within which to file their post-hearing submittals. The Hearing Officer instructed the parties to identify with specificity those parts of their
post-hearing submittals that they wished the Hearing Officer to treat as proposed findings of fact. He added that any proposed findings of fact submitted by the parties had to be based upon the evidence that had been adduced at hearing.
The Hearing Officer received the hearing transcript on April 13, 1992. On April 15, 1992, and May 1, 1992, respectively, Respondent and Petitioner filed their post-hearing submittals. These post-hearing submittals have been carefully considered by the Hearing Officer. Respondent's post-hearing submittal consists of written argument. It does not contain any proposed findings of fact that are labeled as such. Petitioner's post-hearing submittal, on the other hand, does contain such proposed findings of fact. These findings of fact proposed by Petitioner are specifically addressed in the Appendix to this Recommended Order.
Accompanying Respondent's post-hearing submittal were photographs, copies of newspaper articles and other written materials that were not offered into evidence at hearing and therefore are not part of the evidentiary record in this case. On May 1, 1992, Petitioner filed a motion requesting that these evidentiary materials "be ordered stricken." Upon consideration, said motion is hereby GRANTED. See Section 120.57(1)(b)8., Fla. Stat. ("[f]indings of fact shall be based exclusively on the evidence of record and on matters officially recognized"); General Development Utilities, Inc. v. Hawkins, 357 So.2d 408, 409 (Fla. 1978).
FINDINGS OF FACT
Based upon the record evidence, the following Findings of Fact are made:
Respondent was certified by the Criminal Justice Standards and Training Commission on January 22, 1981, and issued certificate number 02-26745, which he still holds.
On July 11, 1987, Respondent was employed by the City of Pompano Beach as a police officer. He had been employed in this capacity for approximately the previous seven years, during which time he had received merit pay increases and very good evaluations.
Katrina Lynn Turner is now in her early thirties. She is an alcoholic who started drinking more than 15 years ago. She first received treatment for her drinking problem in August of 1987.
In July of 1987, Turner drank heavily and often, at times to the point where she would lose consciousness.
Turner suffered such an alcohol-induced blackout on July 11, 1987.
She had spent most of that day with her friends at the beach drinking a considerable amount of beer.
After leaving the beach and going to the local Western Union office to pick up $500.00 she had been wired by her boyfriend, Steven Bols, who lived in Chicago, Illinois, Turner went to the Doll House, a drinking establishment that offered adult entertainment. There, she continued her drinking, consuming a substantial amount of hard liquor.
Turner left the Doll House in a taxi cab. While in the cab, she lost consciousness. The taxi driver became concerned and called for emergency assistance.
At approximately 7:40 or 7:45 p.m., two City of Pompano Beach fire rescue units arrived on the scene.
Richard Hall, a City of Pompano Beach firefighter/EMT who was among those to respond to the call, approached the cab and spoke with the taxi driver. The driver told Hall that he was unable to awaken Turner and therefore thought that she might be dead.
Hall then directed his attention to Turner, who was laying unconscious in the back seat of the cab reeking of alcohol.
Hall's initial efforts to arouse Turner were unsuccessful. Finally, after rubbing her sternum with his knuckles, shaking her, pinching her arm and yelling at her, he got her to open her eyes, which were glazed and bloodshot. Shortly thereafter, however, Turner closed her eyes and Hall had to awaken her again.
Turner's vital signs were taken. They were within the normal range.
At approximately 8:00 p.m., Richard D'Agostino, a City of Pompano Beach police officer who was on road patrol duty that evening, arrived on the scene. By this time, Turner had regained consciousness, but was still acutely intoxicated. She was disoriented, had slurred speech and was unable to stand or walk without assistance.
D'Agostino attempted to question Turner. Because of her condition, it was very difficult for him to get understandable responses to his questions.
In response to one of D'Agostino's questions, Turner told D'Agostino that the last thing she remembered was drinking and having a good time in some topless bar.
After discovering a Colorado driver's license in Turner's purse, D'Agostino asked Turner where she was staying locally. Turner was unable to provide D'Agostino with an address.
D'Agostino also inquired of Turner if there was anyone who would be able to pick her up and care for her that evening. Turner responded in the negative.
Based upon his own observations, as well as the input he had received from the fire rescue personnel on the scene, D'Agostino determined that Turner was so intoxicated that she was not able to care for herself. He therefore took her into protective custody pursuant to Section 396.072, Florida Statutes, which is commonly referred to as the "Meyers Act."
Before departing the scene, which was only one block from the City of Pompano Beach Police Department headquarters, where the City jail was located, D'Agostino paid the taxi driver with cash Turner had in her possession and explained to Turner that she was not under arrest and that she would be free to go when she sobered up. He then transported Turner to the jail.
Michael Oliveri was the jailer on duty that evening. Oliveri was friendly with Respondent. Although they did not work on the same shift, they frequently conversed on the telephone when one or the other was assigned jail duty.
D'Agostino informed Oliveri that Turner was being held in protective custody under the Meyers Act.
Turner was wearing tennis shoes, sweat socks, shorts and a loose tank top without a brassiere. When D'Agostino brought her into the jail, Oliveri leered at her and made suggestive comments regarding her appearance.
Turner giggled. She grabbed both D'Agostino and Oliveri by the arm and told them how cute she thought they were.
Before locking Turner in a jail cell, D'Agostino asked her to take the laces out of her tennis shoes and give them to him. She complied with his request.
When D'Agostino placed Turner in the cell, she became upset and started crying. D'Agostino reassured her that she was not under arrest.
D'Agostino then left the jail to do some paperwork. He returned approximately 15 minutes later to find Turner outside of her cell in the booking area of the jail with Oliveri. There was no legitimate reason for Turner to have been in the booking area.
Oliveri was taking pictures of Turner with a Poloroid camera that was supposed to be used to photograph arrestees booked into the jail.
Turner was a very cooperative and willing subject. She posed for Oliveri. When he asked her to "show a little skin," she responded by exposing her breasts.
Throughout this picture taking session, Turner was laughing and joking with Oliveri.
When Turner started exposing her breasts, D'Agostino approached Oliveri and told him that he should put Turner back in her cell. Oliveri followed D'Agostino's suggestion. D'Agostino then left the jail to go back on road patrol.
At the time of D'Agostino's departure from the jail, Turner still appeared to D'Agostino to be highly intoxicated.
Sometime during D'Agostino's absence from the jail, Oliveri spoke with Respondent and made arrangements to have Respondent pick up Turner from the jail and take her to the Holiday Inn located on A1A in the City of Pompano Beach, where Respondent would be working a special detail later that evening.
In July of 1987, City of Pompano Beach police officers working special details were considered to be on duty, acting in their capacity as City police officers with full arrest powers, from the time they called in on their police radios until they signed off. They were required by the City, which coordinated all special detail hiring, to wear their full police uniforms and carry their police-issued guns and radios while on their special details.
City police officers working special details at the Pompano Beach Holiday Inn were responsible for patrolling the grounds, safeguarding the motel property and otherwise providing security for the motel management and their guests. It was the officers' duty to ensure that persons did not enter or use any of the motel rooms without authorization. They themselves were not authorized to use any of the motel rooms for non-work related purposes. If they wanted to use a room for such purposes during their off-duty time, they had to register and pay in advance at the front desk like any other guest.
Shortly before 10:00 p.m. that evening, approximately two hours after Turner had been taken into protective custody, Oliveri took her from her cell and walked her to the curb outside the front door where Respondent was waiting in his personal vehicle. 3/ Respondent was in full police uniform and had with him his police-issued gun and radio. Along with Oliveri, he helped Turner get into the car.
Neither Oliveri nor Respondent explained to Turner the circumstances under which she was being released from the jail. They simply told her that Respondent was going to take her to the Pompano Beach Holiday Inn. Turner assumed that once she and Respondent arrived at the motel, she would be free to leave. Turner went willingly with Respondent.
While she had slept during a portion of her stay at the jail, at the time she left the jail she was still not completely sober.
In July of 1987, the City of Pompano Beach had no written policies on how long a Meyers Act detainee should be kept in protective custody. Oliveri's supervisor, however, had provided his subordinates with some guidance on the matter. He had verbally instructed them that they should release such a detainee as soon as possible, but in no event before the detainee was able to take care of himself. On the average, Meyers Act detainees in the City of Pompano Beach jail remained in protective custody for six hours.
With Turner as a passenger, Respondent drove directly to the Pompano Beach Holiday Inn. Oliveri remained behind at the jail to finish his shift.
D'Agostino returned to the jail shortly after Respondent and Turner had left. He noticed that Turner was not there and asked Oliveri about her. Oliveri told D'Agostino that he had released Turner to her mother.
Respondent arrived at the Pompano Beach Holiday Inn with Turner a short time after 10:00 p.m.
He parked his car in the motel parking lot across the street from the motel lobby.
Respondent asked Turner to stay in the car. Turner inquired if Respondent needed any money. He replied in the negative.
Respondent then went to the motel lobby and signed in for his special detail. He also called in on his police radio that he was going on duty.
While in the motel lobby, Respondent, without registering or making any advance payment, obtained a key to one of the rooms in the motel from Charles Maloney, who was working at the front desk. This breach of motel policy occurred without the knowledge of Charles Nickert, the motel manager on duty at the time.
Sometime after obtaining the motel room key, Respondent returned to his car. Turner was still seated in the passenger seat where he had left her.
Respondent helped Turner get out of the car and walk up the stairs to the motel room to which he had been given the key.
Respondent unlocked and then opened the door to the room. Turner then walked into the room. Respondent followed her and closed the door behind him.
Once they were in the room, Respondent asked Turner to remove her clothes and lay down on the bed. Turner, who was still suffering from the effects of the alcohol she had consumed earlier that day, complied with his request. After taking off his pants and underwear, Respondent got on top Turner and had sexual intercourse with her on the bed.
After a few minutes, Respondent got off of Turner and went into the bathroom to wash up. When he finished in the bathroom, he put his clothes back on and told Turner that he needed to go to the front desk inasmuch as he was working security at the motel. He asked Turner not to use the telephone while he was gone. He then left the room and headed toward the motel lobby.
Turner thereupon got up off the bed and went into the bathroom to clean herself off. After drying herself with the same towel Respondent had used and placing the towel in her purse, she went to use the telephone in the room, which was beside the bed, to call her boyfriend Bols in Chicago.
Because the room had not been paid for, Turner had to dial the front desk and request that the phone be turned on. She spoke with Gerald Scheller, the night auditor, who had just come on duty at 11:00 p.m. that evening. Scheller turned on the telephone as Turner had requested. Turner then completed her call to Bols.
Shortly thereafter, Scheller discovered that the room from which Turner was calling was supposed to be unoccupied. He immediately alerted Nickert, who was just about to end his shift and leave for the day.
Nickert looked into the matter and confirmed that the room had not been registered to anyone. He then instructed one of his front desk clerks to page Respondent and tell him to go to the room to investigate the matter. Nickert thereupon left the lobby area to meet Respondent in the room.
On his way to the room, Respondent spotted Nickert ahead of him. He called out to Nickert, who stopped and waited for him.
Nickert told Respondent, when Respondent caught up with him, that there apparently was a female making a telephone call from an unrented room.
Respondent advised Nickert that he was aware a female was in the unrented room in question and that, in fact, it was he who had let her into the room, using a key that Maloney had given him earlier that evening. He further told Nickert that the female was Oliveri's girlfriend and that Oliveri was going to join her later and pay for the room. 4/
Nickert was annoyed that Maloney, in violation of motel policy, had given out a key to the room without obtaining any registration information or
payment in advance. After directing Respondent to remove the female from the room, Nickert returned to the motel lobby to confront Maloney about the matter.
Maloney admitted to Nickert that he had given Respondent the key to the room pursuant to Respondent's request after Respondent had indicated that he was tired and might need to lay down and rest later in his shift. In relating to Nickert the circumstances surrounding his giving the key to Respondent, Maloney gave no indication that Respondent had mentioned to him that the room was for Oliveri and his girlfriend.
Respondent meanwhile had rushed back to the motel room to get Turner.
Upon reentering the room, Respondent angrily reprimanded Turner for using the telephone. He then told her that she had to leave and therefore needed to get dressed.
After Turner was fully clothed, Respondent escorted her out of the room and down the stairs.
Turner was still not completely sober at the time she exited the room with Respondent.
When they reached the bottom of the stairs, Respondent told Turner to go to his car and wait for him while he took care of some business in the motel lobby.
Instead of going to Respondent's car, Turner went to a public telephone on the motel property and placed another call to her boyfriend Bols.
Bols suggested to Turner that she call a taxi cab to pick her up at the motel. Turner followed Bols' suggestion.
A taxi cab arrived within 15 to 20 minutes. Turner entered the cab and it drove away.
After unsuccessfully attempting to make contact with a friend with whom she had been staying in Fort Lauderdale, Turner checked into a local Days Inn, where she spent the remainder of the evening.
Respondent was in the motel lobby when the cab drove away with Turner as a passenger. He had been speaking with Nickert.
During his conversation with Nickert, Respondent offered to pay for the motel room he and Turner had used that evening. He also offered to pay for Turner's use of the telephone in that room. Nickert declined Respondent's offer to pay for the room, but accepted payment from Respondent for Turner's use of the telephone. Respondent and Nickert agreed that it would be best if Respondent did not work any additional special details at the motel that month.
The following morning, sometime after 10:00 a.m., Nickert inspected the motel room Respondent and Turner had occupied the evening before. Nickert observed that the bedspread had been removed from the head of the bed and there was a pillow up against the headboard in a vertical position. It appeared to him that a previous occupant of the room had been sitting on the bed with his or her back leaning against the pillow. Nickert further noticed that there was a woman's sweat sock on the floor of the motel room. During his inspection of the
room, Nickert did not see any dirty or soiled towels, nor was it apparent to him that any towels were missing.
Later that same day, July 12, 1987, Respondent had a discussion with D'Agostino about the photographs Oliveri had taken of Turner the day before. D'Agostino was the one who brought up the subject. At first Respondent acted as if had no knowledge of the incident. He subsequently acknowledged, however, that he was aware of what had happened. In addition, he told D'Agostino that he had taken Turner to the Pompano Beach Holiday Inn and "fucked her brains out."
Respondent later called D'Agostino and told him to keep his "mouth shut" about Oliveri's and Respondent's activities with Turner on July 11, 1987.
Turner herself did not immediately report these activities to law enforcement authorities because she did not believe that it would serve any purpose to do so.
Pompano Beach Police Department officials ultimately learned of these activities. Both Oliveri and Respondent were terminated by the department for having engaged these activities. In addition, Oliveri voluntarily relinquished his law enforcement certification.
Sometime in or around 1989 Turner filed a civil action for damages against the City of Pompano Beach and the Pompano Beach Holiday Inn. The matter was settled prior to the City of Pompano Beach Employee Board of Appeals hearing on Respondent's appeal of his termination, at which Turner testified against Respondent. 5/
CONCLUSIONS OF LAW
The instant Administrative Complaint alleges that on or about July 11, 1987, Respondent "did then unlawfully and while on duty as a Pompano Beach Police Officer, remove a female person from the protective custody at the Pompano Beach Police Department, transport the female person to a motel and thereafter engage in sexual intercourse with her" 6/ and that, in so doing, he violated "the provisions of Section 943.1395(5),(6), Florida Statutes, and Rule 11B-27.0011(4)(c), Florida Administrative Code, 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."
Section 943.1395(5), Florida Statutes, provides that "[t]he [Criminal Justice Standards and Training] [C]ommission shall revoke the certification of any [law enforcement] officer who is not in compliance with the provisions of s. 943.13(1)-(10)." Subsection (6) of Section 943.1395, Florida Statutes, authorizes the imposition of certain lesser penalties in appropriate cases.
Section 943.13(7), Florida Statutes, provides that "any person employed or appointed as an officer shall...[h]ave a good moral character as determined by a background investigation under procedures established by the commission."
4. "Moral character" is
not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct
which indicates and establishes the qualities generally acceptable to the
populace for positions of trust and confidence.
Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A law enforcement officer demonstrates a lack of "good moral character" when he engages in "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).
The Criminal Justice Standards and Training Commission, which has the ultimate authority to administratively interpret the provisions of Section 943.13(7), Florida Statutes, and Section 943.1395(5), Florida Statutes, has codified in Rule 11B-27.0011(4)(c), Florida Administrative Code, what the Florida courts have said on the subject of what constitutes a lack of "good moral character." 7/ The rule provides as follows:
For 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 943.13(7), is defined as:
The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness or respect for the rights of others or for the laws of the state and nation, irrespective
of whether such act or conduct constitutes a crime.
In those cases where revocation or suspension of a law enforcement officer's certification is sought based on his alleged failure to maintain good moral character, the certificate holder's lack of good moral character must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the disciplinary action taken may be based only upon the conduct specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
To the extent that Section 934.1395, Florida Statutes, authorizes the Commission to take disciplinary action against a certified law enforcement officer "it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
An examination of the record evidence in the instant case reveals that Petitioner has failed to met its burden of proof with respect to the allegation
made in the instant Administrative Complaint that on or about July 11, 1987, Respondent did "unlawfully and while on duty as a Pompano Beach Police Officer, remove [Turner] from the protective custody at the Pompano Beach Police Department, [and] transport her to a motel." While Respondent did drive Turner to the Pompano Beach Holiday Inn on the evening in question, the preponderance of the evidence establishes that he did so while he was off-duty and only after Turner had been released from protective custody by Oliveri. Furthermore, although Respondent may have provided input that influenced Oliveri's decision to release Turner, the evidence does not clearly and convincingly demonstrate that Turner's release was in derogation of the provisions of the Meyers Act and therefore unlawful. The Meyers Act "authorizes non-consensual detention only if the subject is intoxicated and incapacitated." Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981). "Under the act, a person is deemed incapacitated when the person appears to be in immediate need of emergency medical attention, or when the person appears to be unable to make a rational decision about her need for care." Stewart v. Colman, 449 So.2d 970, 971 (Fla. 5th DCA 1984). The evidence adduced at hearing in the instant case does not clearly and convincingly establish that Turner was "incapacitated," within the meaning of the Meyers Act, at the time she was released from protective custody. Absent such clear and convincing record evidence, the proof is insufficient to establish that, as alleged in the instant Administrative Complaint, Turner's release or removal from protective custody was unlawful. Therefore, even assuming that Respondent was fully responsible for Turner's release or removal from protective custody, there would be an inadequate basis upon which to take disciplinary action against him for his actions in this regard.
Petitioner, however, did establish by clear and convincing record evidence that, as further alleged in the instant Administrative Complaint, Respondent had sexual intercourse with Turner at the Pompano Beach Holiday Inn later in the evening on July 11, 1987, when Respondent was on duty and supposed to be providing security services at the motel. Respondent's engaging in such conduct instead of performing his assigned duties at the motel is an act indicative of a lack of "good moral character" and warrants the taking of disciplinary action against him pursuant to Section 943.1395(5) or (6), Florida Statutes.
Revocation is not the only penalty that the Criminal Justice Standards and Training Commission is authorized to impose upon a certified law enforcement officer who, like Respondent, fails to maintain "good moral character" following his certification. Section 943.1395(6), Florida Statutes, allows the Commission, under such circumstances, to impose lesser penalties than revocation. 8/ This statutory provision provides as follows:
Upon the finding by the commission 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, as required by s. 943.13(7), the commission may enter an order imposing
one or more of the following penalties in lieu of revocation of certification:
Suspension of certification for a period not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission.
Upon the violation of such terms and
conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.
Successful completion by the officer of any basic recruit, advanced, or career development training deemed appropriate by the commission.
Issuance of a reprimand.
As directed by the Legislature in Section 943.1395(7), Florida Statutes, the Criminal Justice Standards and Training Commission has adopted "procedures pursuant to chapter 120 for implementing the penalties provided in subsections (5) and (6) [of Section 943.1395, Florida Statutes]." These procedures are found in Rule 11B-27.005, Florida Administrative Code , which provides, in pertinent part, as follows:
The Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon certified officers who have been found by the Commission to have violated Subsection 943.13(7), F.S. The purpose of the disciplinary guidelines is to give notice to certified officers of the range of penalties which will be imposed upon particular violations of Subsection 943.17, F.S., except as provided in Subsection (4), herein. The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of Subsection 943.13(7), F.S., will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training, or probation), which may be included in the final penalty at the Commission's discretion.
When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:
* * *
(c) For the perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, as described in Rule 11B-27.0111(4)(c), if such act or conduct does not constitute a crime
. . . , the action of the commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation.
The Commission shall be entitled to deviate from the above-mentioned guidelines
upon a showing of mitigating circumstances by evidence presented to the Commission prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more of the following mitigating circumstances:
Whether the officer used his or her official authority to facilitate the misconduct;
Whether the misconduct was committed while the officer was performing his or her other duties;
The officer's employment status at the
time of the final hearing before the Commission;
The recommendations of character or employment references;
The number of violations found by the Commission;
The number of prior disciplinary actions taken against the officer by the Commission;
The severity of the misconduct;
The danger to the public;
The length of time since the violation;
The length of time the officer has been certified;
The actual damage, physical or otherwise, caused by the misconduct;
The deterrent effect of the penalty imposed;
Any effort of rehabilitation by the officer;
The effect of the penalty upon the officer's livelihood;
The penalties imposed for other misconduct;
The pecuniary benefit or self-gain to the officer realized by the misconduct;
The officer's compliance with the terms and conditions of any Commission-ordered probation.
The Commission may impose one or more of the following penalties, listed in increasing order of severity:
The issuance of a reprimand.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the Commission.
Placement on a probationary status for a period not to exceed 2 years, subject to
terms and conditions imposed by the Commission. The terms and conditions may include, but are not limited to: periodic reports from the officer, supervisor or counselor; indirect
or direct supervision by Division staff or a Commission-approved supervisor; furnishing
urine samples and consent to the release and analysis of results of random or scheduled drug tests; personal appearance(s) before
the Commission; participation in psychological, occupational or substance abuse counseling; successful completion of training or
retraining as specified in Subsection (5)(b) above; maintaining employment; refraining from violations of Subsections 943.13(1)-(10); the payment of restitution for damages or loss created by the officer's misconduct; or any other terms or conditions as appropriate.
Suspension of certification and the privilege of employment as an officer for a period not to exceed 2 years.
Revocation of certification.
Having carefully considered the facts of the instant case in light of the provisions of Rule 11B-27.005, Florida Administrative Code, cited above, the Hearing Officer is of the view that the appropriate penalty to impose upon Respondent is the suspension of his certification for a period of six months.
9/
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of his having had sexual intercourse with Turner at the Pompano Beach Holiday Inn on the evening of July 11, 1987, when he was on duty and supposed to be providing security services at the motel; and (2) suspending his certification for a period of six months, based upon such a finding.
DONE and ORDERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1992.
STUART M. LERNER
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 3rd day of June, 1992.
ENDNOTES
1/ At the time of the incident alleged in the Administrative Complaint, Turner was known as Katrina Lynn Snider. She subsequently married Leon Rufus Turner, Jr., and changed her last name.
2/ At this prior hearing, Respondent "had an opportunity [of which he took advantage] and similar motive to develop [Turner's] testimony by . . . cross .
. . examination." Accordingly, inasmuch as Turner was not present at the final hearing in the instant case despite Petitioner's good faith efforts to procure her attendance and thus was "unavailable as witness," the testimony she gave at this prior hearing qualifies as "former testimony" that would be admissible over objection in a civil action pursuant to Section 90.804(2)(a), Florida Statutes, and consequently constitutes competent substantial evidence legally sufficient in and of itself under Section 120.58(1)(a), Florida Statutes, to support a factual finding in this proceeding. See Jackson v. State, 575 So.2d 181, 187 (Fla. 1991)(to establish that declarant is "unavailable as a witness," within the meaning of Section 90.804(1)(e), Florida Statutes, the party offering "former testimony" must establish that it "exercise[d] due diligence in making a good faith effort to locate [the witness]"); State v. Kleinfeld, 587 So.2d 592 (Fla. 4th DCA 1991)(testimony given at first trial admissible against criminal defendant at retrial under "former testimony" exception to the rule excluding hearsay evidence, notwithstanding that the defendant was improperly denied the right to represent himself at the first trial, where the defendant's attorney provided effective representation at the first trial and cross-examined the witnesses' whose "former testimony" was admitted at the retrial); McClain v.
State, 411 So.2d 316, 317 n. 3 (Fla. 3d DCA 1982)("[e]ven in instances where the witness cannot be found, before the witness will be declared unavailable [within the meaning of Section 90.804, Florida Statutes], there must be a showing of a good faith effort to locate him"); Outlaw v. State, 269 So.2d 403, 404 (Fla.
4th DCA 1972)("without question, evidence as to whether the State had or had not utilized the resources and facilities of the sheriff's department [to procure the attendance of the witness whose "former testimony" the State sought to introduce into evidence] would be for the court to consider in reaching a determination as to whether there had been an adequate showing of diligence and unavailability of the witness. But we expressly hold that the State's failure to have the subpoena issued and delivered to the sheriff's department for service upon the witness does not ipso facto act to deprive the trial court of its discretion to determine the sufficiency of the predicate").
3/ Meyers Act detainees released to friends or relatives normally leave the City of Pompano Beach jail through the front door as did Turner in the instant case. Detainees who are sober enough to be released from protective custody, but have no one to meet them, generally leave the jail through the back door.
4/ Oliveri never did join Turner and pay for the room.
5/ Respondent's testimony at the hearing held in the instant case regarding the nature and extent of his involvement with Turner on the evening of July 11, 1987, differs markedly from the account Turner gave during her testimony before the City of Pompano Beach Employee Board of Appeals. The Hearing Officer has resolved the conflict in favor of Turner's version of the events of that evening inasmuch as her account is more plausible than Respondent's and for the additional reasons that Respondent's hearing testimony was presented in a wholly unconvincing manner and such testimony was inconsistent in key respects with previous statements that he had made concerning the matter to others who credibly testified at hearing about these prior inconsistent statements.
6/ The Administrative Complaint does not allege, as Petitioner emphasized at hearing, that the sexual intercourse was non-consensual in nature.
7/ Such being the case, the fact that an officer's misdeeds may have been committed prior to the adoption of the rule (but subsequent to the effective date of Section 943.13(7) and 943.1395(5), Florida Statutes) does not preclude the taking of disciplinary action against the officer for having perpetrated these acts and thereby failing to maintain "good moral character." See Florida Department of Law Enforcement v. Minor, No. C-1634 (CJSTC October 3, 1990).
8/ These lesser penalties are available in the instant case notwithstanding that Respondent's misconduct occurred prior to the effective date of Section 943.1395(6), Florida Statutes. See Florida Department of Law Enforcement v. Minor, No. C-1634 (CJSTC October 3, 1990).
9/ Among the more significant factors militating against the imposition of a harsher penalty are Respondent's otherwise exemplary record as a law enforcement officer and the passage of time since the incident giving rise to these disciplinary proceedings.
APPENDIX TO RECOMMENDED ORDER
The following are the Hearing Officer's specific rulings on the findings of fact proposed by Petitioner:
1-8. Accepted and incorporated in substance, although not necessarily repeated verbatim, in the Findings of Fact of this Recommended Order.
9. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
10-17. Accepted and incorporated in substance.
18. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
19-23. Accepted and incorporated in substance.
24-26. Rejected because they are more in the nature of statements of the law than findings of fact.
27-30. Accepted and incorporated in substance.
Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
34-45. Accepted and incorporated in substance.
46. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
47-55. Accepted and incorporated in substance.
56. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
57-59. Accepted and incorporated in substance.
60. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
61-62. Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
65-70. Accepted and incorporated in substance.
71. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
72-82. Accepted and incorporated in substance.
83. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
84-116. Accepted and incorporated in substance.
117. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
118-129. Accepted and incorporated in substance.
130-131. Rejected because they would merely add unnecessary detail to the factual findings made by the Hearing Officer.
132-136. Accepted and incorporated in substance.
137. Rejected because it would merely add unnecessary detail to the factual findings made by the Hearing Officer.
138-139. Accepted and incorporated in substance.
COPIES FURNISHED:
Gina Cassidy, Esquire Florida Department of Law
Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
Robert J. Rudock
801 South Federal Highway, #316 Pompano Beach, Florida 33062
Jeffrey Long, Director Criminal Justice Standards
and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
James T. Moore, Commissioner Florida Department of Law
Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
Rodney Gaddy, Esquire General Counsel
Florida 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
FLORIDA DEPARTMENT OF LAW ENFORCEMENT,
Petitioner,
vs. DOAH CASE NUMBER: 91-3463
CJSTC CASE NUMBER: L-2136
ROBERT J. RUDOCK,
Certificate Number: 02-26745,
Respondent.
/
FINAL ORDER
This above-styled matter came on for final action before the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant the Section 120.57(1)(b)(9), F.S., at a public hearing on October 29, 1992, in Orlando, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent appeared pro se at the proceedings.
Upon a complete review of the transcript of the record of hearing held On March 17, 1992, in Pompano Beach, Florida, the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated June 3, 1992, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:
FINDINGS OF FACT
The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.
CONCLUSIONS OF LAW
Having reviewed the Recommended Conclusions of Law the Commission adopts the Hearing Officer's conclusions of law.
There is competent and substantial evidence to support the Commission's findings and conclusions.
The disposition of the above styled cause recommended by the Hearing Officer is hereby rejected for those reasons set forth in Petitioner's Exceptions to Hearing Officer's Recommended Penalty which are attached here to, adopted and fully incorporated herein by reference.
IT IS THEREFORE ORDERED AND ADJUDGED:
Respondents Certificate, Number: 02-26745, is hereby REVOKED.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of appeal within thirty (30) days of the date this order is filed.
This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.
DONE AND ORDERED this 5th day of February, 1993.
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
RODNEY DOSS CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to ROBERT J. RUDOCK, 2204 NE 4th Street #4, Pompano Beach, Florida 33062 by U.S. Mail on or before 5:00 P.M., this 5th day of 1993.
COPIES FURNISHED:
Pompano Beach Police Department
| Issue Date | Proceedings |
|---|---|
| Mar. 02, 1993 | Final Order filed. |
| Jun. 03, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 3/17/92. |
| May 01, 1992 | Petitioner`s Proposed Findings of Fact and Conclusions of Law; Motion to Strike Respondent`s Late-Filed Exhibits filed. |
| Apr. 24, 1992 | Order sent out. (Notice of Ex Parte Communication issued on 4-20-92, is corrected to reflect letter and attachments filed by Respondent, not Petitioner. |
| Apr. 20, 1992 | Notice of Ex Parte Communication sent out |
| Apr. 15, 1992 | Letter to SML from R. Rudock (re: statement of facts); Supportive Evidence Documents filed. |
| Apr. 13, 1992 | Transcript (Volumes 1-5) w/Notice of Filing filed. |
| Mar. 20, 1992 | Letter to SML from Chas D. Nickert (re: Witness fees & Charges) w/attached subpoena Duces Tecum & ltr filed. |
| Feb. 10, 1992 | cc: Letter to E. Wilkov from G. Cassidy (re: formal hearing) filed. |
| Dec. 11, 1991 | Notice of Hearing sent out. (hearing set for March 17, 1992; 10:00am; WPB). |
| Dec. 03, 1991 | Letter to WRD from Gina Cassidy (re: Available dates for hearing) filed. |
| Oct. 18, 1991 | Letter to WRD from Gina Cassidy (re: Order issued October 15, 1991) filed. |
| Oct. 15, 1991 | Order Granting Continuance sent out. (Hearing Cancelled; Parties Joint report proposing dates for final hearing due within 15 days of this Order). |
| Oct. 10, 1991 | Motion for Continuance filed. |
| Oct. 10, 1991 | Motion for Continuance filed. |
| Jul. 30, 1991 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for Oct. 31, 1991; 9:30am; Ft. Laud). |
| Jun. 21, 1991 | Notice of Hearing sent out. (hearing set for 8/1/91; 9:30am; Ft. Lauderdale) |
| Jun. 17, 1991 | Ltr. to SLS from Robert D. Klausner re: Reply to Initial Order filed. |
| Jun. 17, 1991 | Ltr. to WRD from Joseph T. Moore re: Reply to Initial Order filed. |
| Jun. 17, 1991 | Appearance as Attorney of Record; Letter to SLS from E. Wilkov (Response to Initial Order) filed. |
| Jun. 14, 1991 | Ltr. to SLS from Robert D. Klausner re: Reply to Initial Order filed. |
| Jun. 12, 1991 | Order Granting Motion to Withdraw sent out. (for Atkinson, Jenne, Diner, Stone, Cohen & Klausner, P.A.). |
| Jun. 07, 1991 | Initial Order issued. |
| Jun. 03, 1991 | Agency referral letter; Administrative Complaint; Answer to Administrative Complaint; (Respondent) Motion to Withdraw filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 05, 1993 | Agency Final Order | |
| Jun. 03, 1992 | Recommended Order | CJSTC put cop in motel room with girl while on duty but did not prove he removed her from protective custody. Bad moral character: 6 months suspension recommended. |
