STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
vs.
Petitioner,
Case No. 19-2918PL
ARNOLD I. FRANCO,
Respondent.
/
RECOMMENDED ORDER
An administrative hearing was conducted in this case on August 21, 2019, by video teleconference at locations in Tallahassee and Tampa, Florida, before James H. Peterson, III, an Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Ray Anthony Shackelford, Esquire
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
For Respondent: Mario Raynald Théodore, Esquire
Florida Police Benevolent Association
300 East Brevard Street Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
Whether Respondent, Arnold I. Franco (Respondent), violated applicable law enforcement standards by improperly exhibiting a firearm on one or more occasions in the presence of one or more persons in a rude, careless, angry, or threatening manner, not necessary for self-defense and, if so, what is the appropriate penalty.
PRELIMINARY STATEMENT
On or about June 5, 2018, Petitioner, Florida Department of Law Enforcement (Petitioner or the Department), filed an Administrative Complaint (the Complaint) before the Florida Criminal Justice Training and Standards Commission against Respondent, alleging three counts against Respondent for improper exhibition of a dangerous weapon in violation of sections 790.10, 943.1395(7), and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b).1/ Respondent timely filed an Election of Rights form disputing the allegations of the Complaint and requesting an administrative hearing.
On May 31, 2019, the Department referred the case to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge. The case was assigned to the undersigned and scheduled for an administrative hearing to be held, at first live in Tallahassee, and then re-noticed to be
held by video teleconference at locations in Tallahassee and Tampa, on August 20, 2019. In an Order denying a motion to dismiss filed by Respondent, the case was rescheduled and subsequently held by video teleconference in Tallahassee and Tampa, on August 21, 2019.
At the hearing, the Department presented the testimony of Gadsden Correctional Facility inmate Jacqueline Perkins, Hernando County Sheriff Deputy Anthony Belmonte, storeowner James Burrow, and Department employee Christopher Van Bomel.
The Department offered 13 exhibits received into evidence as Petitioner’s Exhibits P-1 through P-3, P-6, P-7, P-10 through P-16, and P-18.
Respondent testified on his own behalf and presented the testimony of his wife, Lidie Franco, and Jeannie Pastore, a child protection investigator employed by the Florida Department of Children and Families. Respondent offered 28 exhibits received into evidence as Respondent’s Exhibits R-1 through
R-26, R-28, and R-32.
The proceedings were recorded and a transcript was ordered. The parties were given 30 days from the filing of the transcript within which to file proposed recommended orders. The one- volume Transcript was filed on August 28, 2019, and the parties timely filed their respective proposed recommended orders, both
of which have been considered in preparing this Recommended
Order.
FINDINGS OF FACT
Respondent was certified as a corrections officer in the State of Florida by the Department on December 16, 1998, and issued corrections certification #183395.
The Department is the state agency responsible for enforcing standards applicable to correction officer certificates, pursuant to section 943.12 and chapter 120, Florida Statutes.
Petitioner began his law enforcement career in corrections on July 13, 1998, and is currently employed as a certified correctional sergeant at Hernando Correctional Institution.
Respondent is married to Lidie Franco, and has two adult daughters, Danielle Franco and Laura Franco, and a stepdaughter, Alicia Weierheiser. At the time of the incidents giving rise to the Complaint, Ms. Weierheiser was married to Brent Courtney, and she had a one-year-old daughter, Cecelia, who was not Brent Courtney’s child.
Mr. Courtney had a history of physically abusing both Ms. Weierheiser and her young daughter, Cecelia. Both Respondent and his wife were aware of Mr. Courtney’s abusive
behavior. Despite Mr. Courtney’s abusive behavior, no matter how severe, Ms. Weierheiser would return to Mr. Courtney.
On the afternoon of January 28, 2016, Mr. Courtney called Mrs. Franco on her cell phone while Mrs. Franco was at home with Respondent. She put her cell phone on speaker mode and both she and Respondent heard Brent Courtney state, “If you don’t come get your daughter and your f--king scumbag retarded granddaughter, I’m going to kill them both.”2/ Upon hearing the threat, both Respondent and his wife believed that their daughter and granddaughter were in danger. Mr. Courtney’s threat was credible and he had the present ability to carry out his threats.
At the time, Mr. Courtney, Ms. Weierheiser, and her daughter lived in a house they shared with William and Jacqueline Perkins located on Waycross Drive in Spring Hill, Florida, located about 10 to 15 minutes from Respondent’s home.
In a decision he later regretted, Respondent and his wife decided that Respondent should remain home and go to work on his evening shift, and that Mrs. Franco and their daughter, Danielle, would go and retrieve Ms. Weierheiser and Cecelia.
When Mrs. Franco and Danielle arrived and went inside the house on Waycross Drive, Mr. Courtney and a male accomplice physically attacked Danielle, Mrs. Franco, and Ms. Weierheiser in the grandchild’s presence. The male accomplice grabbed
Danielle by the neck and held her against the wall. When
Ms. Weierheiser attempted to help Danielle, Mr. Cortney began hitting Ms. Weierheiser. When Mrs. Franco attempted to break it up, Mr. Courtney swung a metal pipe at her head. When he missed, the metal pipe stuck in the wall.
During the struggle, Mrs. Franco had an opportunity to call 911, after which Mr. Courtney and his accomplice ran away before the police arrived.
Once the police arrived, they stayed at the house on Waycross Drive for several hours taking statements and allowing Ms. Weierheiser an opportunity to gather her and her child’s belongings. The events lasted through the night of January 28, 2016, until approximately 1:00 a.m. on January 29, 2016.
At the suggestion of the police, Ms. Weierheiser and her daughter went with Mrs. Franco and Danielle to the Franco’s residence for safety.
After everyone arrived at the Franco residence,
Mrs. Franco called Respondent and asked him to leave work early and come home to be with the children and ensure their safety because she had to go to work. Respondent agreed and arrived home at approximately 2:00 or 3:00 a.m. that morning,
January 29, 2016. When he arrived home, he saw that Danielle and Ms. Weierheiser had been beaten and bruised. Mrs. Franco
told Respondent that Mr. Courtney had attempted to kill her with a metal pipe.
Respondent remained awake for the remainder of the night while his wife was at work and his children slept because he knew of Mr. Courtney’s potential for violence and was worried that Mr. Courtney might come to the Franco home to exact vengeance upon the family. Respondent kept vigilance over his children until Mrs. Franco returned from work at approximately 8:00 a.m. on January 29, 2016.
Later that day, child protective investigator (CPI) Jeannie Pastore with the Florida Department of Children and Families (DCF) completed a face-to-face interview with
Ms. Weierheiser at Respondent’s home.
CPI Pastore initiated and Ms. Weierheiser agreed to a formal safety plan for Cecelia’s safety, which required
Ms. Weierheiser to remain in the Franco home and not return with the child to the residence she shared with Mr. Courtney.
At the time, Mr. Courtney had an active warrant for his arrest, as did another roommate at the house, Mr. Perkins.
CPI Pastore warned the Franco family that if the safety plan was broken, or if Ms. Weierheiser returned to the home she shared with Mr. Courtney, DCF would remove Cecelia and place her in state care. CPI Pastore also asked Respondent and
his wife to notify her and law enforcement if the Safety Plan was broken or if Mr. Courtney contacted anyone in the family.
That night, shortly after midnight while the Franco family slept, Ms. Weierheiser secretly left the Franco residence with Cecelia.
The next morning, January 30, 2016, upon discovering that Ms. Weierheiser and Cecelia were missing, Mrs. Franco contacted DCF and law enforcement and advised that
Ms. Weierheiser had left the Franco residence with her grandchild sometime during the night and their whereabouts were unknown. DCF personnel called 911 and the Sheriff’s dispatch to report that Cecelia’s safety was in extreme danger.
After that, Mrs. Franco, the Sheriff’s office, and DCF personnel attempted to locate Ms. Weierheiser and Cecelia, but could not find them.
Respondent became actively involved with searching for Cecelia and Ms. Weierheiser between 11:00 a.m. and 1:00 p.m. on January 30, 2016, by canvassing the neighborhood.
While at first unsuccessful, Respondent then waited near the house on Waycross Drive. His daughter, Danielle, in her own car, joined him in his search. Finally, they noticed Ms. Weierheiser’s vehicle in the area. Although he could not recognize other passengers in the vehicle because of tinted windows, Respondent could tell that Ms. Weierheiser was driving.
When Ms. Weierheiser saw Respondent, she “took off” and began driving recklessly. Respondent followed closely behind, believing that both Mr. Courtney and Cecelia were also in the vehicle.
Respondent pursued and called 911 while following behind Ms. Weierheiser’s vehicle and blowing his horn in an attempt to get her to stop. Danielle, in her own car, was also in the chase.
At one point during the chase, the vehicles came to a stop at Pinehurst Drive. While they were stopped, Respondent exited his vehicle and beat on the windows on the driver’s side of Ms. Weierheiser’s car. Respondent testified that he only hit the windows with his hand during that stop, but there is other evidence indicating that he hit one or more of the driver’s side windows with a gun. During that stop on Pinehurst, Respondent could see through the tinted windows that his granddaughter was in the backseat behind the driver.
The chase started up again, and then, shortly thereafter, Ms. Weierheiser stopped in the area off Kass Circle next to a Sheriff substation, which was closed, and Papa Clyde’s Ice Cream Store. During that stop, once again Respondent exited his vehicle and repeatedly struck Ms. Weierheiser’s car window. This time, without question, Respondent struck the driver’s side with the butt of his pistol, a functioning Glock 40 S&W caliber
pistol, Model 27, in an attempt to break the window and retrieve Cecelia.
After that, Ms. Weierheiser drove away again and the chase continued. During the chase, both Respondent’s car and Danielle’s car struck, or were struck by, Ms. Weierheiser’s vehicle, but there were no serious accidents.
While the chase was ongoing, one or more of the passengers in Ms. Weierheiser’s vehicle called 911. Although evidence indicates that the occupants of Ms. Weierheiser’s car were frightened, the evidence is insufficient to show that Respondent exhibited his pistol in an attempt to threaten or harm anyone. Rather, he only used his firearm in an attempt to break a window to recover his granddaughter.
Ms. Perkins, the only occupant in Ms. Weierheiser’s vehicle that day who was a witness at the final hearing, testified that she believed that Respondent was not coming to attack them that day, but was just trying to save his granddaughter.
The chase ended when the vehicles involved pulled into a McDonald’s parking lot, followed by about a half dozen sheriff patrol cars. The entire chase lasted only about 15 minutes.
Hernando County Sheriff Deputy Belmonte arrived on the scene that day in the McDonald’s parking lot. When he got there, the occupants of the vehicles involved in the chase were
out of their cars (except for Respondent’s granddaughter) and arguing. There were, however, no physical altercations or anything like that at the time.
Respondent did not try to avoid Deputy Belmonte and immediately raised his hand and volunteered that he was the one who had the pistol and that it was in his vehicle’s glovebox.
After taking statements, Deputy Belmonte placed Respondent under arrest for his actions involving the use of his firearm. Respondent’s granddaughter, Cecelia, was taken from Ms. Weierheiser and placed in the custody of the child’s paternal grandparents.
Respondent was charged with three counts of aggravated assault with a deadly weapon.
Because of his arrest and the nature of the charges against him, the Florida Department of Corrections terminated Respondent on or about February 4, 2016.
Respondent timely grieved his termination under the terms of his Collective Bargaining Agreement with the Department of Corrections.
In the meantime, on March 6, 2016, a circuit court judge in Hernando County entered a permanent Final Judgment of Injunction for Protection on Mrs. Franco’s behalf against
Mr. Courtney.
On March 15, 2016, the State of Florida filed a
No Information on two of the three counts against Respondent for aggravated assault with a deadly weapon. The remaining third count of aggravated assault with a deadly weapon was reduced to a misdemeanor charge of improper exhibition of a dangerous weapon and transferred to Hernando County Court.
On April 12, 2016, Mr. Franco voluntarily completed a four-hour Anger Management Class and passed a written knowledge assessment.
On May 4, 2016, the State of Florida resolved the case against Respondent without prosecution and entered a nolle prosequi, effectively dismissing the charge against Respondent alleging improper exhibition of a dangerous weapon.3/
As a result of his termination from Department of Corrections, Respondent was out of work for approximately four- months without pay.
Respondent’s grievance of his termination was resolved on May 11, 2016. Under an agreement settling the grievance, Respondent was given a one-day suspension, the Department of Corrections rescinded Respondent’s dismissal, and Respondent was reinstated to his supervisory position.
Several employment-related character reference letters from law enforcement colleagues, supervisory staff, and productive members of the community were received into evidence.
The reference letters are all positive character references in support of Respondent. A number of those submitting the letters appeared at the final hearing and verified their positive comments in favor of Respondent’s moral character, and have been considered persuasive in Respondent’s defense of the charges against him.
Of particular note is a letter from Tina Roberts, warden of Respondent’s institution who initially drafted Respondent’s Dismissal Letter. Her letter is a positive character reference letter for Respondent requesting the Commission to consider Respondent’s work history, the fact Respondent was reinstated, and his dedication to the Florida Department of Corrections. Those factors have been considered in drafting this Recommended Order.
Prior to the incident giving rise to the criminal charges against Respondent that have since been dismissed, and the Complaint in this case, Respondent had never faced disciplinary charges, nor has he been disciplined since.
Respondent continues to be employed in a supervisory role at the Department of Corrections.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this
proceeding. See §§ 120.569, 120.57(1), 120.60(5), and
943.1395(8)(e), Fla. Stat.
Petitioner is responsible for prosecuting disciplinary cases against certified law enforcement officers. See §§ 943.12 and 943.1395, Fla. Stat.
Petitioner, as the party asserting the affirmative in this proceeding, has the burden of proof. See, e.g., Balino v.
Dep’t of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977). Because
Petitioner is seeking to prove violations of a statute and impose administrative fines or other penalties, it has the burden to prove the allegations in the Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292
(Fla. 1987).
Clear and convincing evidence:
[r]equires that 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 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz
v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983)); Brewer v. Dep’t of Health, 268 So. 3d 871 (Fla. 1st DCA 2019).
The Complaint alleges three counts against Respondent for improper exhibition of a dangerous weapon in violation of section 790.10, Florida Statutes. In his criminal case arising from the same circumstances, the charges against Respondent, including a charge of improper exhibition of a dangerous weapon in violation of section 790.10, were all dismissed. Although there is a higher standard of proof in criminal cases (beyond a reasonable doubt) than the clear and convincing standard in this case, the fact that all of the criminal charges against Respondent were dismissed has been considered.
As to the three counts alleged in the Complaint, the evidence was insufficient to demonstrate that Respondent improperly exhibited a dangerous weapon on any occasion.
Moreover, even if there was support for even one occasion of improper exhibition, if the Complaint’s multiple counts of alleged improper exhibition are based on the number of people witnessing the alleged improper exhibition, the proof of multiple counts must fail. “A defendant [can] be convicted only of one count of improper exhibition of a weapon, even though [the] exhibition occurred in front of several people, where exhibition of the firearm occurred in one criminal episode.” Bass v. State, 739 So. 2d 1243, 1246 (Fla. 5th DCA 1999); Canion v. State, 661 So. 2d 931 (Fla. 4th DCA 1995); see also, Green v.
State, 706 So. 2d 884 (Fla. 4th DCA 1998) (holding that
defendant should be sentenced to one count of improper exhibition of a firearm, not two, where improper exhibition occurred during a single episodic event); see also, Lambert v.
State, 200 So. 3d 1295 (Fla. 2d DCA 2016) (holding defendant’s two convictions for improper exhibition of a firearm, based upon a single episode of wielding the firearm, despite the presence of multiple victims, violated the prohibition against double jeopardy).
Petitioner, however, failed to prove even one of the three counts alleging improper exhibition of a dangerous weapon by clear and convincing evidence.
Having failed to prove the improper exhibition allegations under section 790.10, the evidence was also insufficient to prove the allegations that Respondent failed to maintain good moral character in violation of Florida Statutes sections 943.1395(7) or 943.13(7), or Florida Administrative Code Rule 11B-27.0011(4)(b).
Respondent has been certified by the Department for over 15 years.
Respondent continues to be employed in a supervisory role with the Department of Corrections as a correctional sergeant and has remained in that position since his reinstatement.
Respondent submitted character and employment references from a number of members of law enforcement and civil service employees that were admitted into evidence by agreement. In addition, four of the individuals who wrote letters appeared at the final hearing and verified that their letters were based upon personal knowledge. All of the letters weigh in favor of Respondent’s good moral character.
Although Respondent’s actions stemmed from fear and not anger, Respondent voluntarily attended and successfully completed a four-hour Anger Management Course.
During his entire law enforcement career, Respondent has only faced discipline for his actions giving rise to the Complaint in this matter, and Respondent not been disciplined for any other matter before or since.
Respondent’s actions on January 30, 2016, were to save his one-year-old granddaughter from a life-threatening situation, not to threaten or intimidate anyone.
In sum, the Department failed to prove the allegations of the Complaint by clear and convincing evidence.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered dismissing the Administrative Complaint.
DONE AND ENTERED this 9th day of October, 2019, in Tallahassee, Leon County, Florida.
S
JAMES H. PETERSON, III
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 9th day of October, 2019.
ENDNOTES
1/ All references to the Florida Statutes and Florida Administrative Code are to the current versions. Although there have been some changes, the applicable portions of the current laws and rules have not substantively changed since the time of the alleged incidents forming the basis of the Complaint against Respondent in this case.
2/ This quote was not received for the truth of the matter asserted, but rather as evidence showing that Respondent was aware of Mr. Cortney’s threat. See § 90.801(1)(c), Fla. Stat. (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).
3/ Section 790.10, Florida Statutes, entitled “Improper exhibition of dangerous weapons or firearms,” is the same statutory prohibition forming the basis of the three counts alleged in the Complaint in this case against Respondent. That section provides:
If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the
presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or
s. 775.083.
COPIES FURNISHED:
Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302 (eServed)
Mario Raynald Théodore, Esquire Florida Police Benevolent Association
300 East Brevard Street Tallahassee, Florida 32301 (eServed)
Dean Register, Program Director Division of Criminal Justice
Professionalism Services
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302 (eServed)
Jason Jones, General Counsel
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 19, 2019 | Agency Final Order | |
| Oct. 09, 2019 | Recommended Order | The evidence was insufficient to prove that Respondent improperly exhibited his firearm or that he failed to maintain good moral character as alleged in the Administrative Complaint. |
