STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 96-5220

)

THOMAS M. LINDSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings (Division), held a formal hearing in this matter on May 6, 1997, in Lakeland, Florida.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32301

For Respondent: Thomas M. Lindsey, pro se

21367 Anderson Road

Brooksville, Florida 34601 STATEMENT OF THE ISSUES

Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?

PRELIMINARY STATEMENT

By Administrative Complaint dated March 28, 1995, and filed with the Division on November 6, 1996, Petitioner Criminal Justice Standards Training Commission (Commission) is attempting to revoke, suspend, or otherwise discipline Respondent's Law Enforcement Certificate and as grounds therefor alleges that Respondent has violated the provisions of Section 943.1395(6) and (7), Florida Statutes, and Rule llB-27.0011(4)(a), (b) and (c), Florida Administrative Code, in that Respondent has failed to

maintain the qualifications established in Section 943.13(7), Florida Statutes. By an Election of Rights, Respondent denied all of the allegations and requested a formal hearing. Thereafter, by letter dated November 5, 1996, the matter was forwarded to the Division for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Commission presented the testimony of Debra W. Brice, Dorothy Spickard, Dawn Allison Steward, Susan White Kleine, and Michael Reckart. Petitioner's Exhibits 1 through 6 were received as evidence. Respondent testified on his own behalf and presented the testimony of Deana Lindsey.

Respondent's Exhibits 1 and 2 were received as evidence.

A transcript of this proceeding was filed with the Division on May 19, 1997. The Commission timely filed its Proposed Recommended Order. Respondent elected not to file a Proposed Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. Respondent was certified by the Commission on June 10, 1977, and was issued Law Enforcement Certificate Number 41580.

   
   

2. The Administrative Complaint alleges that: (a) On or between January 1, 1973, and December 31, 1974, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Deborah Brice, a child under sixteen years of age, by fondling her breasts and kissing her neck; (b) On or between January l, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dorothy Spickard, a child under sixteen years of age, by putting her on his lap and tickling her near her vaginal area; (c) On or between January 1, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dawn Whitehead, a child under sixteen years of age, by digitally penetrating her vagina areas and placing her hands on his penis; and (d) On or between June 1, 1969, and December 31, 1971, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Susan Kleine, a child under sixteen years of age, by kissing her on the neck, French-kissing her, and forcing her on a bed and getting on top of her, simulating sexual intercourse.

3. Debra Brice, Dorothy A. Spickard, Dawn Allison Steward (f/n/a Dawn Allison Whitehead), and Susan Kleine testified that

   Respondent touched them inappropriately during the middle 1970's while they were under the age of 18 years. Debra Brice, Dorothy Spickard, and Susan Kleine were around the age of 14 to 15 years at the time the inappropriate touching was alleged to have occurred. Dawn Steward was around the age of 8 to 9 years at the time the inappropriate touching was alleged to have occurred.

   
   

4. Debra Brice, Dorothy Spickard, and Dawn Steward are nieces of Respondent's ex-wife, Carol, who was married to Respondent during the time that the alleged incidents were supposed to have occurred. Susan Kleine is a sister of Respondent's ex-wife, Carol. Respondent and Carol were married in 1966, and were divorced sometime around 1978-79.

   
   

5. It was not until the latter part of 1993, approximately

   20 years later, that Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine told anyone of this alleged inappropriate touching.

   
   

6. Sometime around the latter part of 1993, Carol discussed this inappropriate touching with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine.

   
   

7. Sometime around the latter part of 1993, this alleged inappropriate touching was discussed in the presence of Debra Brice or Dorothy Spickard or Dawn Steward or Susan Kleine during therapy sessions involving Carol's and Respondent's child.

   
   

8. While Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine appeared to be relatively clear on the facts concerning the alleged inappropriate touching, they were not clear on all the facts surrounding the alleged incidents.

   
   

9. There was no evidence presented to corroborate the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, or Susan Kleine.

   
   

10. Respondent denies any inappropriate touching of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Respondent admits tickling and wrestling with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in a playful manner but denies touching any of them in an inappropriate manner, specifically in an inappropriate sexual manner.

    
    

11. There is insufficient evidence to establish facts to show that Respondent touched Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in an inappropriate manner, sexually or otherwise, notwithstanding the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine to the contrary which I

    find lacks credibility due to the reasons set forth in Findings of Fact 5 through 9.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlinqton, 510 So. 2d 292 (Flat 1987). The court in Slomowitz v. Walker, 429 So. 2d 797, 800 (4th DCA Fla. 1983) made the following finding on the issue of clear and convincing evidence:

We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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.

The above holding was cited with approval by the Florida Supreme Court in Inquiry Concernina Davey, 645 So. 2d 398, 405 (Flat 1994). Using the above definition of clear and convincing evidence, it is clear that the Commission has failed to meet its burden of proving that Respondent committed the acts set forth in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly,

Recommended that the Administrative Complaint filed against the Respondent be dismissed.

DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Thomas M. Lindsey 21367 Anderson Road

Brooksville, Florida 34601

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage 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 within 15 days from the date of 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: 96-005220

Orders for Case No: 96-005220