STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 99-0778

)

RICKY J. SHEARS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on August 3, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard D. Courtemanche, Jr., Esquire

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

For Respondent: H. R. Bishop, Jr., Esquire

Police Benevolent Association

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's certification as a law enforcement officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated October 2, 1998, A. Leon Lowry, II, Program Director of the Department of Law Enforcement's Division of Criminal Justice Professionalism Services, on behalf of the Criminal Justice Standards and Training Commission (CJSTC), charged Respondent with unlawfully soliciting Dana Berry for prostitution, lewdness, or assignation on November 7, 1997, in Tampa, Florida; with failing to comply with a lawful order of the CJSTC by committing an unlawful act; and with failing to demonstrate good moral character, in violation of Section 943.13(7), Florida Statutes, and of Rules 11B-27.0011(4)(b) and 11B-27.005(3), Florida Administrative Code. Respondent demanded formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Dana Berry, Russell Marcotrigiano, and Stephen P. Prebich, all police officers with the Tampa Police Department, and introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf and presented the testimony of Richard Politano and Charles Massucci, both police officers with the Tampa Police Department. Respondent also introduced Respondent's Exhibits 1 and 2.

A Transcript of the proceedings was furnished, after which both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the CJSTC was the state agency responsible for the certification of law enforcement officers in Florida. Respondent was certified by the CJSTC on May 21, 1982, holding law enforcement certificate number 105625.

2. On November 7, 1997, the Tampa Police Department's Street Anti-Crime Squad initiated one of its periodic routine reverse prostitution stings at the intersection of Crawford and Nebraska Avenues in Tampa. Officer Dana Berry, a female police officer, played the part of the prostitute. Located in an unmarked police car across the intersection, also in civilian dress, was the "eyeball," Sergeant Russell Marcotrigiano, Officer Berry's supervisor.

3. Officer Berry was to wait to be approached by a male customer, and when that happened, was to agree to an assignation for money. Without doing anything in furtherance thereof, if the customer agreed, she was to direct him to room 8 of the El Rancho Motel, down the block on Nebraska Avenue. Her pointing to the motel was the signal to Sergeant Marcotrigiano that a deal had been made. If the customer went to the motel, he would be arrested there. If he did not and drove away, the offense was in the solicitation and the customer would be arrested in a routine traffic stop within two blocks of the site. Sergeant Marcotrigiano was there to coordinate the sting, and even more

   important, to safeguard the welfare of Officer Berry. Parked in a marked patrol car about two blocks north on Nebraska Avenue were two uniformed officers, Officer Stephen Prebich and Officer MacFarlane, who, upon the direction of Sergeant Marcotrigiano, were to arrest the perpetrator in the routine traffic stop.

4. The sting operation started at approximately 1:45 p.m. on November 7, 1997. At approximately 2:06 p.m., Respondent, driving a green pickup truck, stopped at the intersection in question and made eye contact with Berry, who was standing near a parking lot close-by. Immediately upon contact, Berry came over to the driver's side of Respondent's vehicle and asked if he was lost. Berry did not recognize Respondent as a police officer though there is some evidence, and Respondent so claims, that they had met at work on a previous occasion. Respondent denied being lost and asked Berry if she needed a ride. Berry indicated that she had a room at a nearby motel where they could go, but not without knowing what Respondent wanted. She had been instructed not to mention a sexual act but to wait until the subject first described the requested sexual act. Ultimately he said "a blow-job," and when Berry asked him how much money he had, he replied either "twenty," as Berry claims, or "plenty," as Respondent claims. At this point, considering the deal made, Berry directed Respondent to the motel and pointed to it. This was the signal to Sergeant Marcotrigiano that Respondent should be arrested.

5. Instead of going to the motel, Respondent drove off, turning right onto Nebraska Avenue, heading north. Within two blocks, he was pulled over by Officers Prebich and McFarland. Both officers went to Respondent's vehicle, accompanied by two other officers. Weapons were not drawn. When the officers got to Respondent's vehicle, Officer Prebich opened the driver's door and requested he get out of the vehicle. When Respondent complied, he was placed under arrest. At this point, Officer Prebich did not recognize Respondent. However, it appears that Officer MacFarlane did recognize him. While Respondent was being searched, a pay stub was discovered which indicated that Respondent was a police officer. The arresting officers took Respondent back to the command post where Sergeant Marcotrigiano and Officer Berry were waiting. At this point, Respondent was asked where he worked and replied, "tactical." Prebich claims he did not say much to Respondent at that time. He states he may have mentioned Berry's name to Respondent but does not believe he did so.

6. Officer Politano was working at the command post at this time, writing up paper work on the prostitution sting and monitoring the radio. He recalls Respondent being brought into the command post under arrest. Sergeant Marcotrigiano spoke with Respondent and instructed Politano to take down the names of the parties. In the course of doing this, Politano spoke with Respondent who told him he knew Officer Berry and her former

   supervisor, Sergeant Raulerson, and was just playing with Berry when he made the statements attributed to him by her. Politano contends that it is quite common for police officers to tease undercover operatives who are on duty, including women. This teasing, however, is usually confined to cat-calls and whistles, and he has never heard of a proposition such as was involved here in a stake-out situation.

7. Respondent admits to a conversation with Officer Berry at the location in issue on the afternoon of November 7, 1997. However, he denies having driven past Berry's location twice before stopping to speak with her. Both Berry and Sergeant Marcotrigiano claim he did, however, and neither would have any reason to dissemble. Further, Respondent contends that he could not have been at the intersection at 2:06 p.m. as indicated by Berry and the sergeant. He claims to have left his credit union on Bearss Street after 1:45 p.m., and considering the state of traffic, could not have traveled the 8.9 or so miles between the credit union and the intersection of Crawford and Nebraska Avenues, gone around the block twice as alleged, and still have had the conversation with Berry in time to be arrested at 2:06 p.m.

8. There are several collateral matters to consider regarding the time issue. In the first place, Respondent contends that the accuracy or lack thereof is indicative of the non-credibility of the arrest report. However, no independent

   evidence was introduced to show that the time stamp on the credit union transaction ticket, showing 1:45 p.m., is accurate.

   Regardless, Respondent admitted to a version of the reported conversation between him and Berry, and it is that conversation and the circumstances which surround it, not the exact time, which is important.

9. Respondent categorically denies having seriously solicited Officer Berry for an act of oral sodomy. He claims that while driving in the vicinity, searching for a shop to reasonably detail his relatively new truck, he spotted her on the sting. They made eye contact and, he claims, she nodded at him. Since he recognized her from work, he thought she recognized him as well. She did not, though he had seen her on several occasions at the police station where he would go frequently.

10. Respondent claims he noticed Officer Berry when he stopped for a traffic light at the intersection, and while he was waiting for the light to change, she came up to his truck and asked him if he was lost. Thereafter, the conversation progressed as previously indicated, though Respondent claims to have said "plenty" rather that "twenty" in response to her query as to how much he had. He claims he had no intention to have any sexual contact with Berry and drove off, heading north on Nebraska Avenue, when she pointed to the motel. When questioned by Sergeant Marcotrigiano at the command post, Respondent claims he indicated that he thought Berry had recognized him as he had

    recognized her, and was just "fucking around." Respondent related this same story to Captain Doyle, the supervisor, but such crass verbalization without an indication he was kidding makes Respondent's claim unbelievable.

11. In July 1997, Respondent and the CJSTC entered into a Stipulation and Settlement Agreement in the Commission's case number L-3388 whereby Respondent's certificate was suspended for

    80 hours, and he was placed on probation for a period of one year after reinstatement of his certificate. The documentation of record does not indicate the basis for that action.

12. During May 1999, Respondent, through counsel, filed a motion to dismiss the criminal charge of soliciting for prostitution which had been filed against him in Hillsborough County Court. On June 14, 1999, the motion to dismiss was granted and Respondent was discharged.

    CONCLUSIONS OF LAW

    
    

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

14. The CJSTC seeks to revoke Respondent's certification as a law enforcement officer because of his failure to maintain good moral character, demonstrated when he solicited an undercover police officer for an act of prostitution in November 1997. Section 943.1395(7), Florida Statutes, authorizes the revocation or discipline of a law enforcement certificate upon finding that

    the officer failed to maintain good moral character. Authorized discipline includes revocation of the certification, suspension of certification for up to two years, and/or placement of the officer on probation for up to two years under terms or conditions imposed by the Commission. The certification of an officer already on probation may be revoked or subjected to additional penalties if the officer, while in a probationary status, violates the terms of his or her probation.

15. A failure of "good moral character" is defined in Rule 11B-27.0011(4), Florida Administrative Code, for the purpose of the imposition of discipline, as:

    1. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: . . . sections . . . 796.07. . . .

       
       

16. Section 796.07(1)(a), Florida Statutes, defines prostitution for the purposes of criminal prosecution. If genuine, Officer Berry's agreement to engage in oral sex with Respondent for money would constitute prostitution. Section 796.07(2)(f), Florida Statutes, makes it unlawful to solicit, entice, or procure another to commit prostitution, lewdness, or assignation. Anyone who does so commits a misdemeanor of the second degree, (Section 796.07(4), Florida Statutes), and an overt act is not necessary to constitute the offense. Pauline v. Lee, 147 So. 2d 359 (Fla. 2DCA 1962); cert. den., 156 So. 2d 389 (Fla. 1963); Metcalf v. State, 614 So. 2d 648 (Fla. 4DCA 1993).

17. It is not necessary that the CJSTC prove that Respondent was prosecuted for his actions, but it has the burden to establish that he committed the act alleged by clear and convincing evidence. Osborne v. Stern & Co., 670 So. 2d 932, (Fla 1996); Ferris v. Turlington, 570 So. 2d 212, (Fla. 1987).

18. There is some issue as to whether Respondent drove past Officer Berry once, twice, or at all, before he stopped to talk to her. There is also some issue as to whether he would have had time to get from the credit union to the site of the alleged misconduct in time to be there at the time indicated. While these issues were raised by Respondent to throw some doubt on the credibility of Officer Berry and the other officers involved in this sting, the inconsistencies are irrelevant to the major issue involved; towit, whether or not Respondent solicited Berry for an illegal act.

19. Respondent admits he stopped to talk to Officer Berry, and during the course of that conversation, without identifying himself as a police officer, or without indicating he knew she was a police officer, indicated his willingness to engage in an act of oral sex with her, for money. He does not deny the comments attributed to him were made, but only denies that he was serious when he made them. There was no indication at the time that he was kidding with her or teasing her. As the evidence clearly indicates, he offered to engage in an act of oral sex and stated he had sufficient funds to compensate her for that

    service. Whether he said "twenty" or "plenty" in response to her inquiry as to how much he had is also irrelevant. By the same token, the fact that he did not go to the motel for the act is irrelevant as well. What is clear is that he solicited her for sex and gave absolutely no indication at the time or immediately thereafter, while the two of them were together, that he recognized her as a police officer and was kidding with her as to the solicitation. This constitutes a misdemeanor in violation of Section 796.07, Florida Statutes, and, therefore, a breach of the good moral character required under the Department's rule, and a violation of his probation. As such, it renders Respondent's certificate subject to discipline.

20. The CJSTC has indicated its intention to revoke Respondent's certification as a law enforcement officer. Respondent was the subject of another final order of the CJSTC entered on July 24, 1997, slightly over three months before he committed the offense which is the subject of the instant action. The evidence of record does not disclose for what infraction that action was taken, but it is significant to note that he was given a temporary suspension of his certificate and placed on probation.

21. The circumstances of this case make it abundantly clear that Respondent seems to place himself above the standards imposed by the legislature and the CJSTC for law enforcement officers. It is fortunate that no one was injured as a result of

Respondent's most current misconduct. However, it is clear that Respondent marches to the cadence set by his own conscience, and the morality he has displayed is below acceptable standards.

This is inconsistent with continued certification.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certification as a law enforcement officer.

DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1999.

COPIES FURNISHED:

Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

H. R. Bishop, Jr., Esquire Police Benevolent Association

300 East Brevard Street Tallahassee, Florida 32301

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

Professionalism Services Department of Law Enforcement 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: 99-000778

Orders for Case No: 99-000778