STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-3074

)

GARY VERNON ALEXANDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a hearing in the above- styled case on March 4, 1983, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: M. Catherine Lannon, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

For Respondent: Lorenzo Williams, Esquire

GARY, WILLIAMS AND WALKER

708 North 13th Street

Fort Pierce, Florida 33450 INTRODUCTION

By Administrative Complaint filed July 8, 1982, the Florida Criminal Justice Standards and Training Commission, Petitioner, seeks to suspend or revoke the law enforcement certificate of the Respondent, Gary Vernon Alexander. As grounds for their proposed action, it is alleged that on the evening of February 27, 1982, the Respondent entered Reno's Sports Center in Fort Pierce, Florida, and unlawfully took from a group of men playing cards there approximately $150, an act which is alleged to constitute gross insubordination, willful neglect of duty, incompetence and gross misconduct which seriously reduces his effectiveness as a law enforcement officer, and thereby violates Sections 943.13 and 943.145, Florida Statutes (1981).

At the hearing, Petitioner introduced the testimony of Lamar Farrell, Willis Curry, Theodore White, Sgt. Jerry Bell, Nedra Collette and Hosley Gibson. Respondent testified in his own behalf.

FINDINGS OF FACT

Upon consideration of the evidence adduced at the hearing, the following relevant facts were found:

1. At all times pertinent to the allegations in this hearing, the Respondent held a certificate as a law enforcement officer and was employed by the Fort Pierce, Florida, Police Department.

   
   

2. Respondent was not on duty on the evening of February 27, 1982, and did not participate in authorized law enforcement duties during that period.

   
   

3. On the evening of February 27, 1982, Lamar Farrell, Willis Curry, Theodore White, and several others were gathered in the back room of Reno's Sports Center, owned by Hosley Gibson, located at the corner of 25th and D Streets, Fort Pierce, Florida, for the purpose of playing cards for money.

   
   

4. Playing cards for money constitutes gambling and is a violation of Florida law.

   
   

5. The parties had started to play, and each player had his money in front of him on the table. There was some money in the pot in the center of the table. Mr. Farrell had about $25, Mr. Curry about $35, and Mr. White between

   $30 and $40. The total amount of money possessed that evening by all players is not known.

   
   

6. Shortly afterwards, a large black man dressed in shorts, a white shirt, and tennis shoes entered the room from behind Mr. Farrell, tapped him on the shoulder, and stated to each player, "Give me your money," or words to that effect. This individual then went around the table, picked up the money from in front of each player and that in the pot, and left the room, driving off in a black and red car.

   
   

7. The individual who took the money was wearing on his right side a small holster from the top of which the brown handle of a pistol projected. One witness stated he was wearing a police badge on the top of the shorts, but two others did not see that.

   
   

8. Respondent was recognized by three of the players at the game in question and known by one, Mr. Farrell, to be a policeman at the time of the incident. Mr. Farrell had seen Respondent in the company of another policeman, Sam Marrot, who could not reasonably be confused with the Respondent physically.

   
   

9. Respondent did not turn any money in to the police evidence custodian as the result of a gambling raid during the period February 27 through March 3, 1982.

   
   

10. Respondent owns and drives a black and red Cutlass automobile. When hired by the police department, he was issued two weapons. Both were 0.38 caliber revolvers. One was nickle-plated with a long barrel. The other had a short barrel and a brown grip.

    
    

11. Respondent denies all implications in this matter and attributes the charges to the fact that he participated in raids on Reno's Sport Center, which resulted in finding marijuana three or four times, though he has no idea if any of the witnesses against him here were present at the time of these raids. Respondent was not arrested for this offense, nor were criminal charges ever

    filed against him, even though the State Attorney conducted an independent investigation into the allegations. He was discharged from the police force when he reported for duty on the Tuesday following the incident because of a "complaint" filed against him, apparently by Mr. Gibson, who owns Reno's and who was told about the incident by Farrell the morning after it happened.

    
    

12. Theodore White, employed by Mr. Gibson and B & G Auto Parts, saw Respondent in the parts store the morning after the incident dressed the same way he was at the time of the incident and including the holster. B & G is open two Sundays a month.

    
    

13. Three of the individuals present at the incident identified Respondent as the one who took their money. If this were a concocted situation as Respondent claims, it is improbable that the witnesses' stories would be more consistent and rehearsed than they were. Yet, the testimony, while agreeing on the major elements such as the identity of the perpetrator and what he did, differed somewhat on minor elements such as whether his holster showed or whether he had a badge. It is these very differences which reinforce the credibility of the major points. Further, the witnesses' participation in an illegal but small stakes poker game does not diminish their credibility, especially since Respondent offered no evidence to refute, beyond a denial of implication.

    
    

14. Consequently, all evidence points to Respondent as the perpetrator of the robbery alleged on February 27, 1982, and I so find.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

    
    

16. Section 943.145, Florida Statutes (1981), establishes the grounds for revocation or suspension of certification of law enforcement officers, which include, at Subsection 3(c):

    
    

    The commission of conduct by the certificateholder constituting gross insubordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct which seriously reduces the certificateholder's effectiveness to function as a law enforcement officer or a correctional officer.

    
    

17. The act which Respondent is alleged to have committed, if true, would constitute gross misconduct which would seriously reduce his effectiveness as a law enforcement officer.

    
    

18. It is not at all difficult to conclude, based upon the above Findings of Fact, that Respondent committed the acts alleged and that his actions constitute gross misconduct. Clearly, an officer of the law who himself preys upon those he is sworn to protect cannot fairly be said to function effectively as a law enforcement officer.

19. Respondent asserted that an investigation by the State Attorney did not result in criminal charges leading to conviction of a felony or misdemeanor. Notwithstanding that the test for guilt is different in a criminal trial, a conviction is not a prerequisite for decertification under Chapter 943, Florida Statutes. The criteria here are the conduct of the individual and how that conduct relates to his effectiveness as a law enforcement officer. I have found as a matter of fact that Respondent committed the offenses alleged, that he was known to the parties involved as a policeman, and concluded that his conduct under the circumstances reduces his effectiveness as a law enforcement officer. This satisfies the criteria for decertification.

    
    

20. The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the above Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Criminal Justice Standards and Training Commission issue a final order revoking Respondent's certification as a law enforcement officer in the State of Florida.

ENTERED this 1st day of April, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1983.

COPIES FURNISHED:

M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Lorenzo Williams, Esquire GARY, WILLIAMS AND WALKER

708 North 13th Street

Fort Pierce, Florida 33450

Mr. Robert R. Dempsey Executive Director

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

Mr. G. Patrick Gallagher

Director, Criminal Justice Standards and Training Commission

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

Docket for Case No: 82-003074

Orders for Case No: 82-003074