STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

MICHAEL T. SCOTT,

Respondent.

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) Case No. 10-9783PL

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RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was commenced in this case on April 11, 2011, in Ft. Myers, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set forth below.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Andrew J. Banyai, Esquire

2575 Cleveland Avenue

Ft. Myers, Florida 33901 STATEMENT OF THE ISSUES

The issues in this case are: (a) Whether Respondent, Michael T. Scott ("Scott"), on October 23, 2010, knowingly made a false statement under oath in an official proceeding to Lee

County Traffic Court Magistrate William Belcher; and (b) Whether, Scott, on September 16, 2009, made a false statement in a sworn statement to Investigator Charles Battaglia.

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner, Criminal Justice Standards and Training Commission (the "Commission"), on August 11, 2010, alleging wrongdoing by Scott based on facts occurring during a traffic stop on August 9, 2008. Scott denied the allegations and timely filed a request for a formal administrative hearing.

At the final hearing held in this matter, the Commission called the following witnesses: Sergeant Kelly Petracca, Florida Highway Patrol ("FHP"); William Belcher, Esquire; Sergeant Daniel Taylor, FHP; Corporal Allen Williams, FHP; Charles Battaglia, Investigator with the State Attorney's Office; Kevin Langley, Lee County Sheriff's Office; and Lieutenant James Sellers, FHP. Sgt. Petracca was also recalled as a rebuttal witness. The Commission's Exhibits 1 through 40 were admitted into evidence. Scott called the following witnesses: Corporal Timothy Cramer, FHP; Robert Rioux; Joseph Gibson; and Michael Scott. Respondent Exhibit 1 was also admitted into evidence.

A Transcript of the final hearing was ordered by the parties and filed at the Division of Administrative Hearings on

May 2, 2011. By rule, the parties were allowed ten days to submit proposed recommended orders. Each party timely submitted a Proposed Recommended Order. Each party's Proposed Recommended Order was duly considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Commission is the state agency responsible for, inter alia, certifying and revoking the certification of law enforcement officers and instructors, including agency

   in-service training instructors and criminal justice training schools. It is, therefore, the Commission's responsibility to take disciplinary action against any law enforcement officer who violates statutes or rules relating to the certifications issued by the Commission.

2. Scott, at all times pertinent hereto, held law enforcement certificate No. 274912. The certificate was issued on April 3, 2008.

3. Scott was employed by FHP in 2008. After a period of orientation and training with FHP, Scott was "released" to engage in all duties incumbent upon an FHP trooper. Scott was released to full duty sometime in July 2008.

4. On August 9, 2008, Scott was part of a detail under the supervision and direction of Sgt. Petracca. The detail was located at the intersection of U.S. Highway 41/Cleveland Avenue

   
   

   ("Highway 41") and Hancock Bridge Parkway (the "Parkway") in North Fort Myers, Florida. The purpose of the detail was to issue tickets to drivers at that intersection who were making illegal u-turns on Highway 41 or making illegal right turns from the Parkway. The detail assembled at the intersection around three to four o'clock in the afternoon. The detail worked as follows:

   • Sgt. Petracca or another officer would be located in the first or second parking space closest to the intersection in the Walgreen's parking lot.

   • From that vantage point, Sgt. Petracca could see through her windshield any cars making an illegal

     u-turn on Highway 41 from the northbound lane. She could also see the traffic light standard facing the Parkway and, from her left side window, observe eastbound cars making a right turn from that street on to Highway 41. There was a sign at the intersection indicating that right turns on red were not allowed.1/

   • Other patrol cars (called "chase cars") were stationed further south in the Walgreen's parking lot. The chase cars were lined up, and each car would give chase, in turn, when Sgt. Petracca called

     
     

     out a violation. The next cars in line would then pull forward and await a call from Sgt. Petracca.

   • If Sgt. Petracca saw a car making an illegal u-turn or turning right on red, she would radio a chase car and identify the car which had engaged in the illegal behavior. The chase car would then pursue the violator and issue a traffic citation to the driver.

5. The physical geography of the intersection is of extreme importance to the facts in this case. No pictures exist of the site as it existed on the date in question. Several pictures, made after the fact, show the site from various viewpoints, but none of the pictures provide a complete, comprehensive idea of what a person could actually see from any particular vantage point. Various witnesses testified as to what they could see from the vantage points in question, but they do not all agree as to what could be seen.

   The Traffic Citation

   
   

6. On the day in question, a traffic citation was issued by Scott to a driver named Terry DeBoard. DeBoard was cited for making a right turn on to Highway 41 from the Parkway while there was a red arrow showing on the traffic light. DeBoard contested the ticket, saying that the light was not red and that

   
   

   Scott could not have seen the light from his vantage point in the Walgreen's parking lot.

7. The traffic citation was not introduced into evidence, but the parties stipulate that Florida Uniform Traffic Citation No. 1387-SNF was issued to DeBoard by Scott at 6:11 p.m., on August 9, 2008.

8. The traffic citation does not list any other officers responsible for issuing the citation. That is, neither

   Sgt. Petracca, nor any other officer is listed as the "spotter" who saw the infraction and radioed it to Scott.

9. Scott pulled DeBoard over several hundred yards south of the intersection. According to DeBoard's sworn statement, he asked Scott how he was able to see the light, and Scott told him that Scott's sergeant was stationed at a fast food restaurant near the intersection and that she could see the light. Scott remembers DeBoard asking him something about a Burger King, but does not remember mentioning his sergeant.

   The Chase Car Location

   
   

10. The reason Sgt. Petracca was set up near the corner of the Walgreen's parking lot was so that she could witness violations and report them to the chase cars. The chase cars were not placed in a position to see whether the light for the turn lanes was red or green.

    
    

11. Initially upon arriving at the site on the day in question, there was a short briefing before the chase cars lined up. The cars were first lined up at the end of the parking lot, but just off Highway 41. When it appeared their cruisers might be blocking traffic coming into the parking lot, the line of chase cars backed up some 30 to 60 feet from the road. Farther back still, there was an island of grass separating some of the parking spaces from the entrance road.

12. After receiving his first call and chasing a violator, Scott parked his car next to the island in the parking lot.

    This became his "wait" position for all future calls. Other cruisers were supposedly parked ahead of him and to his right, so it is impossible to determine how Scott fell into the rotation when a call was received from Sgt. Petracca.

13. There were a number of trees between the parking lot and Highway 41, making it more difficult to see across the highway to where the traffic light standard was located. At least one of the trees had been removed when pictures of the site were taken by an FHP investigator some months later.

    Traffic Court Appearance

    
    

14. Scott was obligated to appear in traffic court on the date DeBoard's ticket came up, because he was the ticketing officer. It is necessary for all officers involved in issuing a ticket to be available to testify in court if the offender

    
    

    challenges the citation. No other officer was listed on the citation by Scott.

15. On September 16, 2009, some 13 months after the ticket had been issued, DeBoard's case was heard in traffic court.

    Both DeBoard and Scott testified in the traffic court case, but no other officer was called to testify in that case. Prior to the case being called, Scott approached Sgt. Taylor, who was waiting in court to testify in another matter and inquired as to whether Sgt. Petracca was in court that day. Both Sgt. Taylor and Sgt. Petracca surmised that Scott inquired about

    Sgt. Petracca in order to get her to testify in DeBoard's case, because he knew that he had made a mistake not listing her as a witness. While the logic of that supposition is reasonable, there is no corroboration or other support to verify it.

16. Scott says he did not list Sgt. Petracca as a witness on the citation, because she was not needed. That is, he made the traffic stop based on his own observation of the violation. He saw both the red signal and that DeBoard turned right against the arrow.

    The Line-of-Sight Discussion

    
    

17. As stated previously, there are photographs in evidence that give a general overview of the intersection from various perspectives. None of the photos, however, provide persuasive evidence as to what a person might observe from any

    
    

    point within the general area. Testimony of persons actually on site on the day in question is, thus, imperative. Those persons testified as follows:

    • Sgt. Petracca remembers being parked in the first parking space closest to the intersection. The reason for selecting that spot was that it was the best place to be able to observe traffic movement and the status of the traffic light at any given moment. The detail was set up the way it was primarily because of the configuration of the site, i.e., parts of the parking lot did not have a clear view of the traffic light.

    • Cpl. Williams served as both the spotter and as a chase car during the detail. When he acted as a chase car, he parked along the outer edge of the parking lot, fairly close to Highway 41. He could not see the traffic light from where he parked, but could not say if a person parked further back could see the light.

    • Officer Langley was summoned to the site on September 20, 2009, ostensibly to assist FHP.2/ When Officer Langley arrived, he was asked by Scott, who was wearing civilian clothes, to notarize a written statement by another person who was there. The

      
      

      other person had issued a statement saying he could see the traffic light from a particular location in the parking lot, i.e., approximately the same spot that Scott says his car was located on the day in question. Scott then handed Officer Langley a Witness Interview Form and asked him to state on the form whether Officer Langley could see the traffic light from a particular spot. Officer Langley issued the statement, but testified that he did not go to other places in the parking lot to determine if he could see the light. Officer Langley's statement says he was "approximately 30 feet from the entrance/exit of this parking lot." It does not appear his estimation is accurate, and Officer Langley admitted that he is not good with distances. Furthermore, this visualization occurred approximately a year after the day in question.

    • Cpl. Cramer was on site on the day in question. He says he was generally parked in the line of chase cars close to the curb at the entrance to the parking lot. From there, he could not see the traffic light, but the light might be visible from some other (undisclosed) spots in the parking lot.

      
      

    • Gibson is a civilian who met Scott at church. Scott asked him to visit the site and make a visual determination for him. Gibson said he could see part of the red arrow on the traffic light from the spot where Scott said his car had been parked on the day in question. Gibson was the person whose statement Officer Langley notarized. Again, this was long after the day in question and, obviously, Gibson could not verify where Scott's car was parked on that day.

    • Scott says that he parked next to the island and could see the red turn arrow on the traffic standard from that vantage point. However, when Scott revisited the area just prior to his sworn statement to Investigator Battaglia, he said that it appeared to be more difficult to see the light than he earlier remembered.

    • Lt. Sellers took a number of pictures of the site on December 7, 2010, but it is impossible to determine whether the images are reflective of the site as it existed on August 9, 2008. Lt. Sellers could not see the red arrows from the spot where Scott said he was parked on the day in question.

    
    

18. From the totality of the evidence and considering the credibility of each witness, it appears more likely than not that the chase cars would not have been in a position to see the red arrows on the traffic light at approximately 6:00 p.m., on August 9, 2008. However, there is no persuasive evidence as to exactly where Scott's cruiser was parked on that day. If he was generally in the position of the other cruisers, he could not have seen the light. If he was somewhere else in the parking lot, he might have been able to do so.

19. Scott remembers seeing DeBoard make the turn and seeing the red arrow on the traffic light. Thus, Scott pulled DeBoard over and issued a citation, not bothering to put the spotter's name on the ticket as a witness. Scott admits that his note-taking on tickets was not up to par about that time, but says Sgt. Petracca's name was not on the ticket because he did not need her testimony.

20. Scott later testified in traffic court under oath that he could see the red arrow on the traffic light and could see DeBoard make the right-hand turn. Subsequently, Scott made a sworn statement to an investigator that he could see the red arrow on the traffic light and could see DeBoard make the

    right-hand turn.

    
    

21. Inasmuch as there is evidence to the effect that chase car officers in the detail could not observe the traffic light

    
    

    from where they were parked, the Commission believes Scott perjured himself in the traffic court testimony and in the sworn statement.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2010). Unless stated otherwise herein, all references to Florida Statutes shall be to the 2009 codification.

23. The Department, as the party asserting the affirmative of the issue, has the burden of proof as to the issues in this case. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The standard of proof for a licensure revocation case is clear and convincing evidence. Osborne Stern and Co. v. Dep't of Banking & Fin., 647 So. 2d 245, 248 (Fla. 1st DCA 1994).

24. Clear and convincing evidence is an intermediate standard of proof, which is more than the "preponderance of the evidence" standard used in most civil cases, but less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970). 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) (citations omitted).

25. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida and states in pertinent part:

    (7) Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

26. Section 943.1395(7) then states as follows:

    
    

    (7) 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

    1. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       
       

       1. Revocation of certification.

          
          

       2. Suspension of certification for a period not to exceed 2 years.

          
          

       3. 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.

          
          

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

          
          

       5. Issuance of a reprimand.

          
          

27. The Commission believes that Scott's alleged perjury during traffic court and in his sworn statement equate to proof of bad moral character. As such, Scott would be subject to the penalties set forth above. However, there is no clear and convincing evidence that the statements made by Scott under oath were false. The evidence is insufficient to make a finding that Scott exhibited bad moral character.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Petitioner, Criminal Justice Standards and Training Commission, dismissing the charges against Respondent, Michael T. Scott.

DONE AND ENTERED this 29th day of June, 2011, in Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2011.

ENDNOTE

1/ There were pictures introduced into evidence that showed a No Turn On Red sign attached to the traffic light standard, but the most competent evidence indicates that only the road-side sign was in existence on the day in question.

2/ Officer Langley received a call from his dispatcher that said FHP needed assistance at the site. In fact, there was no FHP activity at the site at that time. Rather, Scott had called FHP to see if they would send someone to notarize a sworn statement. (No one explained why Scott, a civilian by that time, would call FHP to come to his assistance.) FHP apparently called the Sheriff's office, who in turn called Officer Langley. Thus, Officer Langley supposed the call had come from an FHP employee.

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

Andrew J. Banyai, Esquire 2575 Cleveland Avenue

Fort Myers, Florida 33901

Linton B. Eason, Esquire

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 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: 10-009783PL

Orders for Case No: 10-009783PL