vs. )
PHILIP S. SPAZIANTE, )
Respondent. )
Case No. 12-2897PL
On Novemeber 9, 2012, a duly-noticed administrative hearing was conducted by Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings in Blountstown, Florida.
For Petitioner: Linton B. Eason, Esquire
For Respondent: Philip S. Spaziante, pro se
The first issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011), as alleged in the Administrative Complaint. If so, the second issue for
violation.
On June 28, 2012, Petitioner, the Criminal Justice Standards and Training Commission (“the Commission” or “Petitioner”), filed an Administrative Complaint against Respondent, Philip S. Spaziante (“Mr. Spaziante” or “Respondent”). The Administrative Complaint alleged that Respondent failed to maintain the qualifications established in section 947.13(7), requiring law enforcement officers to have good moral character, and in so doing, violated section 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b) and (c). The factual allegations asserted to support the charges are that Respondent a) made a false statement in writing with the intent to mislead the Bay County Clerk’s Office, in the performance of its official duty; and b) while acting as a law enforcement officer, used excessive and/or unnecessary force on Tamarah Rasmussen, by “slamming the victim’s head and/or placing handcuffs on the victim tightly and/or dragging the victim down the stairs while handcuffed, the use of which was inappropriate for the circumstances presented.”
Mr. Spaziante disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On September 4, 2012, the matter was referred
to the Division of Administrative Hearings for the assignment of an administrative law judge.
The case was originally scheduled for hearing November 1, 2012. However, at the request of Petitioner, the case was rescheduled for November 9, 2012, and proceeded as scheduled.
At hearing, Petitioner presented the testimony of Tamarah Rasmussen; Investigator Marcus Bailey of the Bay County Sheriff’s Office; Major Eddie L. Johnson, Jr., of the Florida Highway Patrol(“FHP”); Lt. David C. Ward of the Bay County Sheriff’s Office; and Assistant Chief Gregory Yancey of the Bonifay Police Department. Petitioner’s Exhibits numbered 1-8 were admitted into evidence. Respondent testified on his own behalf and presented the testimony of Dana Sowell of the Bay County Clerk of Court; Brian Atkinson of the Bay County Sheriff’s Office; Lt.
Dave Brown of the FHP; Major Roman Wood of the Calhoun County Sheriff’s Office; Sergeant Lonnie Baker of the FHP; and Deputy David Tatum of the Calhoun County Sheriff’s Office. Respondent’s Exhibits numbered 1-5 were admitted into evidence. After hearing the testimony presented by Ms. Sowell and Mr. Atkinson, counsel for the Commission withdrew the allegations against Respondent listed in paragraph 2 (a) of the Administrative Complaint, and no factual findings with respect to this charge are included in this Recommended Order.
A one-volume Transcript of the proceedings was filed with the Division on November 29, 2012. Respondent filed a Proposed Recommended Order prior to the receipt of the Transcript. On December 13, 2012, the Department requested eight additional days in which to file its recommended order, which Respondent opposed. On December 18, 2012, the additional time was granted, with the caveat that Respondent would be able to file a response to the Commission’s proposed recommended order if he so chose.
Respondent did so on January 2, 2013.
One of the exhibits submitted, Petitioner’s Exhibit 1, is a copy of a tape which has a short video component and a longer audio component. The video portion and some of the audio portion were played several times during the course of the hearing. In preparing this Recommended Order, however, the undersigned was unable to review the tape. An Order was entered on January 16, 2013, giving Petitioner a week to provide another copy of the tape that could be played on Windows Media Player or Quicktime.
Petitioner provided a second copy of the Exhibit that same day. Both parties’ submissions have been carefully considered in the preparation of this Recommended Order.
At all times relevant to this proceeding, Respondent was a certified law enforcement officer, having been issued Law
Enforcement Certificate Number 194525 by the Criminal Justice Standards and Training Commission.
At the time of the incident in question, Respondent was employed by the FHP.
For an unspecified time prior to July 11, 2011, Respondent was involved in a relationship with a woman named Tamarah Rasmussen. For some period, she shared his home with him. However, in the weeks or months preceding July 11, 2011, the couple’s relationship had deteriorated, and Respondent wanted it to end. He had, however, allowed her to remain in the home “as a friend.”
On July 10, 2011, the couple had a fight, and Respondent left the house.
On July 11, 2011, Respondent returned to the home after his work shift, and told Ms. Rasmussen that he wanted their relationship to end. Respondent told her he wanted to sleep in a separate bed, and took the mattress pad off of a bed in a bedroom downstairs and put it on a separate bed upstairs. Ms. Rasmussen reacted by taking the mattress pad off of the second bed and throwing it out the window.
Respondent retrieved the mattress pad. Ms. Rasmussen then poured a container of water on the bed where Respondent intended to sleep.
Respondent turned on the video function on his cellular phone and asked Ms. Rasmussen about her actions. She responded by telling him he was a fool and an idiot, and that he was crazy.
In what can be gleaned from the tape, Respondent asked her to take her things and leave. Instead, Ms. Rasmussen approached Respondent trying to get his phone as he started to go upstairs, and began hitting him. He can be heard on the cell phone recording repeatedly asking her to stop. Ms. Rasmussen repeatedly answered “no,” and “this was good enough for you last night,” and the sound of her striking Respondent can be heard clearly.
This altercation occurred as Respondent attempted to retreat up the stairs. At one point, Respondent exclaimed that Ms. Rasmussen had hit him in the face, and Ms. Rasmussen responds, “yeah, I did.”
Respondent and Ms. Rasmussen end up in what appears to be a walk-in closet upstairs. At that point, Respondent told Ms. Rasmussen that she was “going down,” and that he would “arrest her myself.” Respondent appeared to be out of breath. Ms. Rasmussen responded by telling him repeatedly that she was not under arrest and he was not arresting her for anything. She told him several times to stop, and to “get off of her,” stating
that she could not breathe. Eventually, she told him that he had won, and asked him to help her up.
Ms. Rasmussen testified that Respondent dragged her up the stairs, hitting her head on the stairwell on the way up. She testified further that he slammed her against the wall, handcuffed her behind her back, and was sitting on top of her while he did so, and while she pleaded with him to stop. According to her, Respondent hit her several times during the time they were in the closet, and then dragged her back down the stairs by the chain on the handcuffs. She also stated that Respondent threatened to kill her, saying that if he did so he could dispose of her body in the pond on the property and no one would know unless they drained the pond.
Respondent, on the other hand, testified that
Ms. Rasmussen began hitting him around the head and neck, and he was retreating up the stairs in an effort to get away from her, telling her repeatedly to stop. He testified that once they reached the closet, he told her he was arresting her and placed her hands behind her back in order to handcuff her. When she told him he was not arresting her for anything, he warned her not to “make me Taze you,” and finished placing the handcuffs on her wrists, behind her back. Respondent denied sitting on
Ms. Rasmussen, saying that he knelt on one knee with one foot flat on the floor, and with Ms. Rasmussen secured between his legs, as he learned in law enforcement training.
While Ms. Rasmussen testified that he dragged her down the stairs of the house and then threw her down the outside steps, Respondent testified that he carried her down the stairs of the home so as not to injure her, but that she was resisting him. While the taped recording contained sounds indicating that Respondent was being hit by Ms. Rasmussen going up the stairs, the same is not true with respect to the descent. Ms. Rasmussen can be heard telling Respondent to stop, but there is no sound that can be attributed to her head banging against the wall or anyone being dragged down the stairs.
Once they were both downstairs, Respondent called in a “1024” on his FHP radio, which means “officer in jeopardy, send help as soon as possible.” The consensus of those officers testifying was that this call is rarely used and is the equivalent of “calling the calvary,” because the officer needs help immediately.
Both Rasmussen and Respondent exited the home once the 1024 call was placed. Rasmussen testified at hearing that Respondent offered to take the handcuffs off of her and she refused the offer, saying that she wanted the responding officers to “see me exactly this way.” She got in his truck, which was parked near his locked law enforcement vehicle, and shut the door to get out of the rain.
Law enforcement responding to the 1024 call were Marcus Bailey, an investigator with the Bay County Sheriff’s Office; FHP Major Eddie Johnson; and Lieutenant Davis Ward of the Bay County Sheriff’s Office. Their arrival at the home was approximately twelve minutes from the call being received by the FHP dispatcher. The Bay County Sheriff’s Office conducted the investigation of the matter, and because a law enforcement officer was involved, the investigation was conducted by supervisors.
As a result of the incident, Respondent was placed on administrative duty on July 11, 2012, and terminated from the FHP July 16, 2012.
The officers who responded all saw the video of the cell phone recording, which was also played several times during the course of the hearing. While, curiously, two of the three refer to Respondent as “taunting” Ms. Rasmussen at the beginning of the video, the video does not display or record anything that the undersigned could describe as taunting. It portrayed Respondent expressing dismay at Ms. Rasmussen’s behavior; Respondent requesting that she get her things and leave;
Ms. Rasmussen’s angry response; the sounds of Ms. Rasmussen hitting Respondent; Responding placing her under arrest and reciting her rights; and Ms. Rasmussen’s angry response and cries for help and for Respondent to let her go.
Respondent’s supervisor, Sergeant Ronnie Baker, testified that Respondent was a great employee who went “above and beyond,” and who prior to this incident (which Sergeant Baker did not witness), had no complaints against him. Sergeant Baker, among others, testified that Ms. Rasmussen had a reputation for untruthfulness.
The undersigned reviewed the tape several times. It is of limited assistance in deciphering what is, in reality, an event where the only witnesses are the participants, Respondent and Ms. Rasmussen. However, after listening to the tape and observing the demeanor of witnesses (both at hearing and in the tape), Ms. Rasmussen’s account of the incident is simply not credible.
The sounds on the tape clearly support the testimony that Ms. Rasmussen was hitting Respondent repeatedly as they went up the stairs. There are no corresponding sounds to support her contention that he slammed her head into the wall or dragged her down the stairs. Moreover, the pictures of Ms. Rasmussen do not clearly depict bruising or swelling consistent with her description of the incident. There are slight red marks on
Ms. Rasmussen’s wrists, but they do not provide clear and convincing evidence that he dragged her anywhere, much less down the stairs. The marks on her arms are just as likely to indicate her resisting his efforts to carry her down the stairs.
Moreover, her claim that he threatened to kill her and dispose of her body in the pond on the property is totally inconsistent with Respondent’s actions in placing a 1024 request for assistance, and waiting at the front of the property for assistance to arrive.
The Administrative Complaint charges Respondent with use of excessive force by slamming Ms. Rasmussen’s head and/or placing handcuffs on the victim tightly and/or dragging her down the stairs while handcuffed. There is no clear and convincing evidence that Respondent slammed Ms. Rasmussen’s head against anything; that he put the handcuffs on her too tightly; or that he dragged her down the stairs while handcuffed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2012).
This disciplinary action by Petitioner is a penal proceeding in which Petitioner seeks to discipline Respondent’s certification as a law enforcement officer. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking and Fin. v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As stated by the Supreme Court of Florida,
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 lacking in confusion as to the facts in issue. The evidence must be of such a 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Administrative Complaint contains the following factual allegations:
2. (a) On or about July 11, 2011, the Respondent, Philip Spaziante, did unlawfully and knowingly make a false statement in writing with the intent to mislead the Bay County Clerk’s Office, a public servant, in the performance of their official duty.
(b) On or about July 11, 2011, the Respondent, Philip S. Spaziante, did then while acting as a Law Enforcement Officer, use excessive and/or unnecessary force on Tamara Rasmussen, victim, to wit: slamming the victim’s head and/or placing handcuffs on the victim tightly and/or dragging the victim down the stairs while handcuffed, the use of which was inappropriate for the circumstances presented.
Based upon these factual allegations, the Administrative Complaint alleges that “the Respondent did violate the provisions of Section 943.1395(7), Florida Statutes, and Rule 11B-27.0011(4)(b); (c), Florida Administrative Code, in that
Respondent has failed to maintain the qualifications established in Section 943.13(7), which require that a Law Enforcement Officer in the State of Florida have good moral character.”
Section 943.1395(7) and (8) provides:
(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 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.
(8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for
prohibited conduct. The penalties must be consistently applied by the commission.
The Commission has defined “good moral character” for purposes of section 943.1395(7) in Florida Administrative Code Rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided in pertinent part:
(4) 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:
* * *
Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections 316.193, 327.35, 414.39,
741.31, 784.011, 784.03, 784.047, 784.048,
784.05, 784.046(15), 790.01, 790.10, 790.15,
790.27, 794.027, 796.07, 800.02, 800.03,
806.101, 806.13, 810.08, 810.14, 810.145,
812.014, 812.015, 812.14, 817.235, 817.49,
817.563, 817.565, 817.567, 817.61, 817.64,
827.04, 828.12, 831.30, 831.31(1)(b),
832.05, 837.012, 837.05, 837.055, 837.06,
839.13, 839.20, 843.02, 843.03, 843.06,
843.085, 847.011, 856.021, 870.01, 893.13,
893.147, 914.22, 934.03, 944.35, 944.37, and
944.39, F.S.
Any principal, accessory, attempt, solicitation, or conspiracy, pursuant to Chapter 777, F.S., which had the crime been
committed or completed would have been a felony offense; or
The perpetration of an act in any jurisdiction other than the State of Florida, which if committed in the State of Florida would constitute any offense listed in this rule section.
The perpetration by an officer of acts or conduct that constitute the following offenses:
Excessive use of force, defined as a use of force on a person by any officer that is not justified under Section 776.05 or 776.07, F.S., or a use of force on an inmate or prisoner by any correctional officer that would not be authorized under Section 944.35(1)(a), F.S. The Recommended Response to Resistance and Levels of Resistance, form CJSTC-85, revised February 7, 2002, hereby incorporated by reference, is a reference tool to evaluate use of force. Form CJSTC-
85 can be obtained at the following FDLE Internet address: http://www.fdle.state.fl.us/Content/CJST/Pub lications/Professionalism-Program- Forms.aspx, or by contacting Commission staff at (850) 410-8615.
Misuse of official position, defined by Section 112.313(6), F.S.
Having an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controllee. An unprofessional relationship is defined as:
Having written or oral communication with an inmate, detainee, probationer or parolee, or community controllee that is intended to facilitate conduct prohibited by this rule section; or
Engaging in physical contact not required in the performance of official duties, and is defined as kissing, fondling of the genital area, buttocks, or breasts, massaging or similar touching, holding hands, any other physical contact normally associated with the demonstration of affection or sexual misconduct as applied to
all certifications, which is defined in Section 944.35(3), F.S.
Sexual harassment pursuant to and consistent with decisions interpreting 29
C. F. R. 1604.11, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when the harassment involves physical contact or misuse of official position and when:
Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
The factual allegations in the Administrative Complaint, other than the allegation to establish Respondent’s licensure, are limited to those recited in paragraph 26, above. The Commission withdrew the charge alleged in paragraph 2(a), and no findings or conclusions are being made in this Recommended Order with respect to this charge.
Clearly, there are no factual allegations to support a violation of paragraph (b), which requires the plea of guilty or a verdict of guilty for enumerated misdemeanor or criminal offenses, or the commission of an act would constitute one of the enumerated crimes. The Administrative Complaint does not identify which, if any, of the identified crimes are at issue.
Notwithstanding the reference to rule 11B-27.0011(4)(b), inasmuch as there is no corresponding factual allegation to support a violation, there is no violation of rule 11B-27.0011(4)(b).
With respect to rule 11B-27.0011(4)(c), the only paragraph having any relationship to the factual allegations in the Administrative Complaint is rule 11B-27.0011(4)(c)1., which makes it a violation to commit the excessive use of force. Therefore, despite the inclusion of other provisions in the rule, the undersigned concludes that the only violation actually charged in the Administrative Complaint at this point (and the only one addressed by the Commission’s Proposed Recommended Order), is the failure to maintain good moral character in violation of section 947.1395(7), as defined in rule 11B- 27.0011(4)(c)1.
With respect to this violation, Respondent can be disciplined only for matters alleged in the charging document. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep’t of Prof. Reg., 563 So. 2d 805 (Fla. 1st DCA 1990). Thus, the inquiry is limited to those factual matters actually alleged in the Administrative Complaint: whether Respondent used excessive force by slamming
Ms. Rasmussen’s head; putting handcuffs on her too tightly; or dragging her down the stairs while handcuffed. Clear and
convincing evidence was not presented to support the factual premise alleged.
This case presents a drama where neither of the primary actors are portrayed in a positive light. However, while Respondent may not have used his best judgment when it came to his interactions with Ms. Rasmussen, he did not commit the allegations alleged in the Administrative Complaint. Much of the Commission’s case rested on the testimony of a witness that the undersigned simply did not find particularly believable. The Department did not prove the violation alleged by the heavy burden of clear and convincing evidence.
The Commission spends a great deal of effort to demonstrate that Respondent’s arrest of Ms. Rasmussen violated the policies of the FHP. However, Respondent was not charged with performing an unlawful arrest. Having not alleged as a factual matter that Respondent made an unlawful arrest, this cannot form the basis for finding a violation. Trevisani.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint.
DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2013.
Linton B. Eason, Esquire
Philip S. Spaziante (Address of record)
Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489
Gerald M. Bailey, Commissioner 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.
