STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case Nos. 07-3660PL

) 07-3661PL

WILLIAM D. CHRISTMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Pierce, Florida, on October 1, 2007.

APPEARANCES

For Petitioner: Joseph S. White

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Ronald L. Cason

Law Offices of Ronald L. Cason

501 South Tenth Street Fort Pierce, Florida 34950

STATEMENT OF THE ISSUES

The issue in DOAH Case No. 07-3660PL is whether Respondent made a false statement, under oath, in an official investigation conducted by Commander Katherine England of the Fort Pierce

Police Department, in violation of Section 837.02(1), Florida Statutes (2007), and thus Sections 943.1395(6) and (7), Florida Statutes (2007), and Florida Administrative Code Rule 11B- 27.0011(4)(a) by failing to maintain good moral character.

The issue in DOAH Case No. 07-3661PL is whether Respondent engaged in an act or acts of sexual harassment involving physical contact or misuse of position against Officer Sandra Larkins of the Fort Pierce Police Department, in violation of Section 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(c).

PRELIMINARY STATEMENT

By Administrative Complaint dated May 11, 2007, which commenced DOAH Case No. 07-3660PL, Petitioner alleged that Respondent is a law enforcement officer, holding certificate number 258960. The Administrative Complaint alleges that, on November 15, 2006, Respondent unlawfully made a false statement, which he did not believe to be true, under an oath administered by Commander Katherine England in an internal investigation regarding a material matter. The Administrative Complaint alleges that Respondent thus violated Section 837.02(1), Florida Statutes, or any lesser included offense; Section 943.1395(6) and (7), Florida Statutes; and Florida Administrative Code Rule 11B-27.0011(4)(a). The Administrative Complaint alleges that

Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes.

By Administrative Complaint dated May 9, 2007, which commenced DOAH Case No. 07-3661PL, Petitioner alleged that, from October 2-6, 2006, Respondent engaged in an act or acts of sexual harassment involving physical contact or misuse of position against Sandra Larkins--specifically, by inappropriate sexual comments and touching--which created an intimidating, hostile, or offensive work environment for the victim. The Administrative Complaint alleges that Respondent thus violated Section 943.1395(6) and (7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(c) by failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes.

By Order of Consolidation entered September 4, 2007, the Administrative Law Judge consolidated the two cases.

At the hearing, Petitioner called eight witnesses and offered into evidence one exhibit: Petitioner Exhibit 1. Respondent called one witness and offered into evidence three exhibits: Respondent Exhibits 1-3. All exhibits were admitted.

The court reporter filed the transcript on October 22, 2007. The parties filed Proposed Recommended Orders on November 1, 2007.

FINDINGS OF FACT

1. On August 4, 2006, Petitioner issued Respondent law enforcement certificate number 258960. The record reveals no previous discipline.

2. From January 9, 2006, until some point after the incidents described below, the Fort Pierce Police Department employed Respondent as a police officer.

3. On September 28, 2006, Respondent was undergoing police training. Fort Pierce Police Department Officer James Ward was serving as Respondent's Field Training Officer. As such, Officer Ward was showing Respondent how to take calls, apply the law to actual situations, and maintain safety. The officers were working the evening shift, from 4:00 p.m. to 3:30 a.m.

4. Sometime around 9:00 p.m. that evening, a store clerk accidentally triggered a silent alarm at Cosmic Kiss. Cosmic Kiss is an adult store that sells sexually themed items, such as DVDs.

5. Officer Ward and Respondent responded to the silent alarm. When they arrived at the store, they interviewed the store clerk who had triggered the alarm and learned that she had done so accidentally while putting up stock. The officers checked out the premises, prepared an alarm report, and confirmed that everything was in order at the store. After about 10-15 minutes in the store, they left.

6. A couple of hours later, during their meal break on the same shift, Officer Ward and Respondent returned to the store on their personal time. They entered the store and found the store clerk still stocking the security-wrapped DVDs. At some point, Officer Ward left the store and walked over to the Pilot truck stop next door, but Respondent remained in the store for about

   45 minutes.

   
   

7. Based on statements made by Respondent during a subsequent internal investigation, conversations between Respondent and the store clerk who had set off the silent alarm are of interest for two reasons: the circumstances surrounding a DVD that the clerk gave Respondent and a cell number that Respondent gave the clerk.

8. According to Officer Ward and Respondent, the clerk and Respondent discussed the DVD during the first visit. Officer Ward testified definitively that, during the first visit, Respondent jokingly asked for a free DVD, the clerk replied that she would give him one right then if he wanted one, and Respondent replied that he would get it later. Officer Ward added that Respondent later told him that, during the second visit to the store, the clerk had given him a DVD.

9. Respondent testified that, during the first visit, while he was writing the alarm report, the clerk asked him if he wanted to sample a DVD. Treating the offer as a joke,

   Respondent laughingly asked if he would have to pay for it, and the clerk replied, "no, it's a sample." She started to put a DVD in a bag, but Respondent declined to accept it, saying it was early in his shift. Respondent testified that later, during the second visit, but out of the presence of Officer Ward, the clerk again offered Respondent a free DVD, and he accepted it this time.

10. The store clerk testified that the DVD discussion took place during the second visit. She testified that Respondent asked her which DVDs she liked to watch. She testified that she answered that she did not like sexually themed DVDs, but that "some way, it was, can he have one?" The clerk testified that Respondent asked her to pick out a DVD for him and, when she did, he asked if it were an early Christmas gift. However, the clerk also testified that she did not recall if Respondent asked anything to the effect, "is it free, or do I have to pay for it?"

11. It is impossible to find, by clear and convincing evidence, which version of the DVD transaction actually took place. The store clerk's credibility is badly undermined by her subsequent statement to a police investigator that Respondent paid for the DVD. The store clerk admitted that this was a lie, evidently to protect her job by showing that she was not giving away store merchandise. The clerk also testified vaguely as to

    the DVD transaction. Officer Ward's credibility is good. His testimony frankly depicted a situation in which he was not particularly vigilant in monitoring the behavior of his trainee. However, the possibility exists that he was focused on other matters, such as official police business during the first visit and his own purchase (made by a third officer also taking his meal break at Cosmic Kiss) during the second, so he might not have paid close attention to the precise wording of the exchanges between the store clerk and Respondent.

12. Although Respondent's testimony suffers from the obvious fact that it is self-serving, testimony of the store manager offers some support for Respondent's version. The manager described store policy that allowed employees to sign out merchandise to sample it before returning the item to the store. So the emphasis by Respondent on the clerk's offer to sample a DVD finds some support in the store policy, although the clerk did not sign out the DVD that she gave Respondent. Also, the manager testified that she later fired the store clerk for giving away merchandise, so this may have been a recurring problem with her.

13. Petitioner thus failed to prove by clear and convincing evidence that Respondent solicited the gift of the DVD from the store clerk.

14. The second part of the conversation between the store clerk and Respondent that is of interest in this case is whether she asked for his cell number or whether he offered it to her, unasked. The clerk testified that Respondent was the pursuer in their exchanges. She said that he wanted her to watch the DVD with him, even though she had no interest in such material, and offered her his cell number, on the back of a police department card, in the hope that she would contact him. Respondent said that, after listening to her complain about her last boyfriend and her offer to watch a DVD with him, he merely acceded to her request for his cell number.

15. It is impossible to determine, in this he-said, she- said scenario, which version of events is true. It is possible that neither witness is consciously lying. No subsequent contact ever took place and, perhaps for that reason more than any other, the circumstances of the offer of the cell number and, thus, the start of a relationship that never bore fruit are perhaps forever lost, even to the participants themselves. Petitioner has thus failed to prove that Respondent offered his cell number, unasked, to the store clerk.

16. The materiality of these incidents arises from police department policies prohibiting officers from soliciting gifts and offering, unasked, their personal cell numbers and subsequent statements by Respondent during an internal

    investigation into the incident. On November 15, 2006, Commander Katherine England of the Fort Pierce Police Department interviewed Respondent, under oath. Commander England asked Respondent if the employee "was asking you if you wanted to sample a DVD?" Respondent replied, "yes." Several times, this exchange was repeated during the interview, and, each time, Respondent stated that the clerk offered him a sample DVD. Similarly, Respondent told Commander England twice that the clerk asked him for his cell number. Absent clear and convincing evidence that Respondent solicited the DVD and offered his cell number, unasked, Petitioner has thus failed to prove that his statements to Commander England were untrue.

17. The other case involves an incident during self- defense training involving Respondent and Officer Sandra Larkin. The class is taught by specially trained detectives with the Fort Pierce Police Department and is restricted to law enforcement officers, who must be recertified periodically in defensive tactics. The class takes place in a trailer on the police department property.

18. Mats are laid out on the floor of the trailer. Along the side of the mats are chairs in which class members not directly involved with activities on the mats sit and wait their turns. On October 4, 2006, two officers were training a class

    of about a dozen officers, including Respondent and Officer Larkin.

19. In one maneuver, one officer had to lie down with his or her back against the mat. Officer Larkin was to be this officer. When one of the trainers asked for another officer to serve as Officer Larkin's partner, Respondent offered to do so, as he did readily with all of the females in the class.

20. The maneuver involves some forceful contact in order to subdue an assailant. In executing the maneuver, Respondent properly placed his knees up against the buttocks of Officer Larkin, but, departing from the protocol of the maneuver, "jacked" her up and said, according to Officer Larkin, "I'm too big for you anyhow." Officer Larkin testified that one of the trainers, Detective Christopher Newman heard this remark. Officer Larkin testified that she said to Detective Newman, referring to Respondent, "pretty bold, isn't he?" She added that he replied, "yeah."

21. Later, during the same session, Officer Larkin testified that Respondent, who is much larger than she is, picked her up and moved her about one foot in from the edge of the mat, when it appeared that she was about to leave the mat during another maneuver. She testified that Respondent did not say anything on this occasion. It is difficult to determine if Officer Larkin found this act to be sexually offensive. During

    her recollection of this act, Officer Larkin smiled, in evident amusement, not nervousness or embarrassment, and never described this act as sexually offensive.

22. After the session was completed, a supervisor contacted Officer Larkin to investigate a complaint that someone other than Officer Larkin had filed as a result of the first incident described above. When asked if she had been offended, Officer Larkin said that she had.

23. Detective Newman testified that Respondent made several sexually charged comments to Officer Larkin during the session, although Officer Larkin only described the one cited above. Detective Newman testified that, while doing the maneuver with the knees in contact with the buttock, Respondent said to her, "it's tight, but we can make it fit." He described Officer Larkin's reaction as laughter and did not say that she said anything about Respondent's boldness.

24. The other trainer, Detective Joseph Alves, described the comment differently. He testified that he heard Respondent say to Officer Larkin, "that's how it would be." He, too, omitted any description of anything that Officer Larkin said in reply.

25. Respondent denied that he behaved in a sexually offensive manner during the training session.

26. The alleged incident on the mats took place in a small setting in the presence of at least ten persons, at least two of whom--the trainers--were focused intently on the actions of Respondent and Officer Larkin. All of these persons are trained law enforcement officers, who, among other things, are experienced in observing what is taking place around them. It is impossible, under these circumstances, to credit the testimony of any of the three law enforcement officers as to what Respondent said when what they heard was so completely different.

27. Absent evidence of anything that Respondent may have said at the time, the sudden lifting of Officer Larkin, in isolation, lacks any sexual significance and seems to have been in the nature of horseplay. Pressing his knees against her buttocks was part of the maneuver and, again absent additional evidence, lacks sexual significance. No evidence suggests that the second incident had any sexual significance, or that Officer Larkin thought that it did.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

29. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and

    Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

30. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court stated that:

    [C]lear and convincing evidence

    requires that the evidence must be found to be credible; the facts to which the witnesses testify 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.

    
    

31. Section 943.1395(7), Florida Statutes, authorizes Petitioner to impose discipline for the failure to maintain good moral character, as defined by rule. Authorized discipline comprises revocation, suspension for up to two years, probation for up to two years, and the issuance of a reprimand. Florida Administrative Code Rule 11B-27.0011(4) provides various definitions of good moral character.

32. As noted above, Petitioner has failed to prove the material allegations of each Administrative Complaint in each of the two cases.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaints in both cases cited above.

DONE AND ENTERED this 2nd day of November, 2007, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2007.

COPIES FURNISHED:

Michael Crews, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Joseph S. White Assistant General Counsel

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

Ronald L. Cason Attorney at Law

501 South 10th Street

Fort Pierce, Florida 34950-8539

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 07-003660PL

Orders for Case No: 07-003660PL