DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE, STANDARDS AND ) TRAINING COMMISSION, )
vs. ) Case No. 06-1280PL
THOMAS C. ROBBINS, )
Respondent. )
Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on June 9, 2006, by video teleconference at sites in West Palm Beach and Tallahassee,
Florida.
For Petitioner: Linton B. Eason
The issue in this case is whether Respondent, Thomas C. Robbins, committed the acts alleged in an Administrative
Complaint dated December 6, 2005, and, if so, what penalty should be imposed upon him.
On or about December 6, 2005, the Criminal Justice Standards and Training Commission issued an Administrative Complaint against Thomas C. Robbins. The Administrative Complaint alleged that Respondent had engaged in criminal conspiracy by agreeing, conspiring, combining or confederating with another person or persons to extort money from Moises Benzion Ventura. The Administrative Complaint alleged that this conduct constituted a violation of Section 777.04(3), Florida Statutes (2005). Consequently, the Administrative Complaint alleged that Respondent had committed a violation of Section 943.1395(6) and/or (7), Florida Statutes (2005), and/or Florida Administrative Code Rule 11B-27.0011(4)(a) in that he had failed to maintain the qualifications established in Section 943.13(7), Florida Statutes (2005), for his law enforcement certification.
On or about December 28, 2005, Respondent executed an Election of Rights form, indicating he disputed the allegations of the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes (2005). On or about April 12, 2006, the Administrative Complaint and request for hearing were filed with the Division of Administrative Hearings with a request that the case be
assigned to an administrative law judge. The matter was designated DOAH Case No. 06-1280PL and was assigned to the undersigned.
The final hearing was scheduled for June 9, 2006, by Notice of Hearing by Video Teleconference issued April 19, 2006. The initial Notice of Hearing erroneously stated that the hearing would be conducted between teleconferencing sites in Tallahassee and Miami, Florida. Therefore, an Amended Notice of Hearing was issued May 24, 2006, correcting the teleconferencing sites to Tallahassee and West Palm Beach, Florida.
The undersigned conducted the final hearing from a public hearing room in Tallahassee, Florida. Counsel for Petitioner participated in the hearing from the same location. Counsel for Respondent, the Respondent, all witnesses, and the court reporter participated in the hearing from West Palm Beach, Florida.
At the final hearing Petitioner presented the testimony of Kimberly Anspach and Cheryl Griffin. Petitioner also had admitted Petitioner's Exhibits 1, 2 and 3. Respondent testified on his own behalf and presented the testimony of Scott Briegel.
The official Transcript of the final hearing was filed on July 5, 2006. By Notice of Filing Transcript issued July 6, 2006, the parties were informed that their proposed recommended orders were due on or before August 8, 2006. The filing
deadline was extended until August 21, 2006, upon request for additional time made by Petitioner on behalf of both parties. Both parties filed proposed recommended orders which have been fully considered in issuing this Recommended Order.
All references to Florida Statutes and to the Florida Administrative Code are to the 2005 versions, unless otherwise
noted.
A. The Parties.
The Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission"), is created within the Florida Department of Law Enforcement by Section 943.11, Florida Statutes. The Commission is charged with the responsibility for, among other things, the certification and discipline of certified law enforcement officers, instructors, and criminal justice training schools in Florida.
Respondent, Thomas C. Robbins, has been certified as a law enforcement officer in Florida since April 12, 1991, having been issued Law Enforcement Certificate Number 78355.
B. April 13, 2005.
Kimberly Anspach is a cousin of Mr. Robbins' wife, Tamara E. Robbins.
Ms. Anspach, who resides in Boyton Beach, Florida, at the times relevant to this matter was employed as a dancer at Cheetah's Lounge.
On April 13, 2005, Ms. Anspach and another dancer employed at Cheetah's Lounge identified only as Michelle (identified as "Michael" in the Transcript of the final hearing), agreed to dance privately for a man by the name of Moises Ventura and three other men. Ms. Anspach and the other dancer were told by Mr. Ventura that they would both be paid
$1,000.00 for their services.
Ms. Anspach and Michelle accompanied Mr. Ventura and the other men to a private residence where the women danced. The women consumed alcohol and the men, in addition to using alcohol, used drugs. Ms. Anspach and Michelle also engaged in mutual sexual relations with the men.
The Early Morning of April 14, 2005.
Ms. Anspach and Michelle left the residence at around 4:30 a.m., on April 14, 2005. Mr. Ventura and the other men refused to pay the $2,000.00 owed to the women.
Upset at not being paid for her services, Ms. Anspach telephoned her cousin, Tamara Robbins. Ms. Anspach explained to Mrs. Robbins about the events of the previous night and told her that Mr. Ventura had refused to pay for her services.
Ms. Anspach was told by Mrs. Robbins that she would help get her
the money she was owed by Mr. Ventura. Mrs. Robbins told
Ms. Anspach to get some rest and that she would call her back later that day.
The Attempted Extortion of Mr. Ventura.
After speaking with Ms. Anspach, Mrs. Robbins telephoned Mr. Ventura. Later that day, Mrs. Robbins called Ms. Anspach and told her that she had telephoned Mr. Ventura and told him that if he did not pay Ms. Anspach and Michelle the money they were owed that Ms. Anspach would claim that he had raped her.
On the same day that Ms. Anspach spoke with
Mrs. Robbins about the incident, Mr. Ventura went to the Royal Palm Beach Police Department. He spoke with Officer Cherly Griffin, telling her that he had received a telephone call from an individual that told him Ms. Anspach would claim he raped her if he did not pay her $2,000.00.
A "controlled phone call" was made from the Police Department to a number provided to Mr. Ventura by the women who had threatened him. A woman answered and identified herself as "Donna." The controlled phone call took place on April 14, 2005. Detectives Kazer and Durso listened to the controlled phone call. Officer Griffin also listened to the telephone conversation. That call was recorded and admitted in evidence as Petitioner's Exhibit 1.
The controlled phone call made on April 14, 2005, was made to a cellular phone utilized by Mrs. Robbins. The woman who identified herself as "Donna" was Mrs. Robbins. This finding is based upon the testimony of Ms. Anspach that she recognized Mrs. Robbins’ voice on the tape and the phone records of Mrs. Robbins' cell phone.
During the controlled phone call, Mr. Ventura was directed by Mrs. Robbins to bring the money owed to Ms. Anspach to Wellington Mall (hereinafter referred to as the "Mall"), and meet Ms. Anspach at the Chic-Fil-A.
Wellington Mall.
Later during the afternoon of April 14, 2005,
Mrs. Robbins telephoned Ms. Anspach and told her that she was to go to the Chic-Fil-A at the Mall, where she would meet
Mr. Ventura and collect the money owed her. Mrs. Robbins also told her that Mr. Robbins would come to her apartment, pick her up, and take her to Mall.
Mr. Robbins picked up Ms. Anspach at her apartment and drove her to the Mall. During the ride to the Mall, Mr. Robbins told Ms. Anspach that what was going on could be considered blackmail and "that if anything were to happen when we were to pick up the money that he had no involvement."
When they arrived at the Mall, Mr. Robbins dropped Ms. Anspach off while he parked his vehicle. He told
Ms. Anspach that he would be waiting for her around the corner from the CHIC-FIL-A and would be watching her to see if anything were to happen. He reassured her that, if anything were to go wrong, he would be right around the corner.
Approximately 30 minutes after arriving at the Mall, Mr. Robbins received a telephone call from Mrs. Robbins, who told him that the meeting location had been changed from the Mall to a Hess Gas Station located in Wellington.
The Hess Gas Station.
Upon arriving at the Hess Gas Station, which was close to the Mall, Mr. Robbins parked his vehicle. Mr. Ventura then walked up to the parked vehicle and said, "oh, this is your muscle" evidently referring to Mr. Robbins. While Ms. Anspach said "yes," Mr. Robbins said nothing.
Immediately after Ms. Anspach responded to
Mr. Ventura's statement, Royal Palm Beach Police officers took Ms. Anspach and Mr. Robbins out of the vehicle at gun point.
Both were placed on the ground and handcuffed.
Ms. Anspach was arrested and taken to the Royal Palm Beach Police station. Mr. Robbins was released at the Hess Gas Station.
Initially, Ms. Anspach told the police that she had been raped by Mr. Ventura. When the recording of the controlled phone call was played for her, she admitted that she had been
told by Mrs. Robbins that Mr. Ventura had been told to pay her the money she was owed or that she would report that he had raped her.
Mr. Robbins' Explanation.
Mr. Robbins testified unconvincingly at the final hearing that the only thing he knew about the events of April 13 and 14, 2005, was that his wife had requested that he give
Ms. Anspach, who had no automobile at the time, a ride to the Mall to collect money owed to her from a friend.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
The Burden and Standard of Proof.
In the Administrative Complaint, the Commission is seeking the imposition of, among other penalties, the revocation or suspension of Mr. Robbins' law enforcement certification. Therefore, the Commission has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance,
Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510
So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).
Clear and Convincing evidence has been defined as evidence which:
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.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
The grounds proven in support of the Commission's assertion that Mr. Robbins' law enforcement certificate should be revoked or suspended must be those specifically alleged in the Administrative Complaint. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).
The Charges Against Mr. Robbins; Section 943.1395(6) and/or (7), Florida Statutes.
The Commission seeks to discipline Mr. Robbins for violating Section 943.1395(6) and/or (7), which provides the following:
The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).
. . . .
Upon a 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:
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 or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
D. Section 943.1395(6).
The Commission has failed to prove clearly and convincingly that Mr. Robbins violated Section 943.1395(6). The Commission failed to prove that Mr. Robbins "intentionally execute[d] a false affidavit" or that he was not in compliance with the provisions of Section 943.13(4), which requires that a
law enforcement officer
[n]ot have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States. . . .
All of the provisions cited in Section 943.1395(6) deal with giving false statements, which the evidence failed to prove Mr. Robbins is guilty of, and which the Commission did not allege or prove.
F. Section 943.1395(7).
Section 943.1395(7) contemplates that a law enforcement officer will maintain good moral character and that disciplinary action may be taken against a law enforcement officer "[u]pon a finding by the commission that a certified officer has not maintained good moral character. "
The term "moral character" has been defined for purposes of Section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011. In its Administrative Complaint, the Commission has alleged that Mr. Robbins failed to maintain good moral character as defined in Rule 11B-27.0011(4)(a), which provides, in pertinent part, as follows:
For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.
. . . .
In support of its complaint, the Commission has alleged that Mr. Robbins' actions would constitute the felony offense as defined, in pertinent part, in Section 777.04(3), Florida Statutes, as follows:
(3) A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy .
. . .
The evidence clearly and convincingly proved that Mr. Robbins' actions constituted the felony offense defined in Section 777.04(3), Florida Statues. The court in Arguelles v.
State, 842 So. 2d 939, 944 (Fla. 4th DCA 2003), reh. denied, 851 So. 2d 728 (Fla. 2003), explained what is necessary to prove a conspiracy as follows:
To establish a conspiracy and appellant's participation in it, the state must prove "an express or implied agreement or understanding between two or more persons to commit a criminal offense," and an intention to commit that offense. Sheriff v. State, 780 So. 2d 920, 921 (Fla. 4th DCA 2001).
Direct proof of the agreement is not necessary; it may be inferred from the circumstances. See Harris v. State, 450 So. 2d at 513-14, 1984 Fla. App. LEXIS 12433
However, this circumstantial evidence must be consistent with a hypothesis of guilt and
inconsistent with every reasonable hypothesis of innocence. See McClain v. State, 709 So. 2d 136, 138 (Fla. 1st DCA 1998). Thus, a defendant cannot be a conspirator by merely being present at the scene of the offense, driving to the scene knowing the purpose of the journey, or aiding and abetting in the commission of the offense. See Sheriff, 780 So. 2d at 921; Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994) (reversing conspiracy conviction where defendant merely aided and abetted); Pennington v. State, 526 So. 2d 87, 88 (Fla. 4th DCA 1987) (reversing conspiracy conviction where defendant was merely present at the scene and aided in its commission without knowing the nature of the contraband transferred).
While much of the evidence presented in this matter constituted hearsay and there is no evidence directly proving that
Mrs. Robbins informed Mr. Robbins of the plot, there was enough evidence to support the allegations of the Administrative Complaint. That evidence implies that Mr. Robbins did more than just drive Ms. Anspach to the Mall and the Hess Gas Station or otherwise merely aided and abetted the commission of the offense.
Ms. Anspach admitted her involvement with Mrs. Robbins and identified Mrs. Robbins' voice on the tape of the controlled telephone conversation between Mrs. Robbins and Mr. Ventura. That tape, which is a record of a phone call to Mrs. Robbins' cell phone, and the conversations between Mrs. Robbins and
Ms. Anspach prove that Mrs. Robbins and Ms. Anspach engaged in
an attempt to extort money from Mr. Ventura.
Mr. Robbins' involvement in the conspiracy was proved by Ms. Anspach testimony that Mr. Robbins picked her up and took her to the Mall, Mr. Robbins' admission that he was asked by his wife to take Ms. Anspach to the Mall, and, most importantly, by the statements made by Mr. Robbins to Ms. Anspach described in the Findings of Fact section of this Recommended Order.
Mr. Robbins' statements to Ms. Anpach constitute an admission against his interest, an exception to the hearsay rule.
§ 90.803(18)(a), Fla. Stat. (2006). See Arguelles v. State.
G. Appropriate Disciplinary Action.
The Commission is authorized, upon finding a violation of Section 943.1395(7), to impose the discipline specified in Section 943.1295(7)(a) through (e), which ranges from revocation to a reprimand.
Rule 11B-27.005(5) sets forth the disciplinary guidelines for the discipline of law enforcement officers. In pertinent part, Rule 11B-27.005(5)(a) sets forth the following
guideline:
(a) For the perpetration by the officer
of an act that would constitute any felony offense, pursuant to paragraph 11B- 27.0011(4)(a), F.A.C., but where there was not a violation of Section 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from suspension of certification to revocation. . . .
The rule goes on to provide guidelines for some specific offenses, but none of those specific offenses have been proven in this case. Therefore, the penalty range appropriate in this case pursuant to the Commission's rules is suspension to revocation.
Rule 11B-27.005(6) sets forth aggravating and mitigating circumstances which also to be taken into account:
Aggravating circumstances:
Whether the certified officer used official authority to facilitate the misconduct.
Whether the misconduct was committed while the certified officer was performing other duties.
The number of violations found by the Commission.
The number and severity of prior disciplinary actions taken against the certified officer by the Commission, provided the officer was previously disciplined by the Commission within the preceding eight years or received a Letter of Guidance within the preceding five years.
The severity of the misconduct.
The danger to the public.
The actual damage, physical or otherwise, caused by the misconduct.
The lack of deterrent effect of the penalty imposed by the employing agency.
The pecuniary benefit or self-gain to the officer realized by the misconduct.
Whether the misconduct was motivated by unlawful discrimination.
Any behavior constituting “domestic violence” defined by Section 741.28(1), F.S.
Whether the certified officer has previously received a Letter of Acknowledgement within the preceding three years.
Mitigating circumstances:
The officer’s employment status in a position requiring Commission certification at the time of the final hearing before the Commission.
The recommendations of character or employment references.
The lack of severity of the misconduct.
The length of time the officer has been certified by the Commission.
Any effort of rehabilitation by the certified officer.
The effect of disciplinary or remedial action taken by the employing agency or recommendations of employing agency administrator.
The recommendation of a Probable Cause Panel to impose a penalty below the penalty guideline.
Effort of the officer to retract a false statement prior to the close of the disciplinary or criminal investigation.
Applying the aggravating and mitigating circumstances, the Commission should consider, in addition to the fact that Mr. Robbins' actions involved a felony, the following:
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Thomas C. Robbins violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of three years.
DONE AND ENTERED this 7th day of September, 2006, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2006.
Linton B. Eason, Esquire
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
