STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-279

)

MICHAEL L. ILLES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on June 9, 1983, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Criminal Justice Standards and Training Commission against Michael L. Illes which alleges as follows:

1. That the Respondent, Michael L. Illes, is a law enforcement officer holding certificate number 02-24636 issued by the Petitioner;

   
   

2. That in the month of December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system in her home in Broward County, Florida;

   
   

3. That the Respondent went to the Raybin home in the routine course of his duties;

   
   

4. That during the month subsequent to December 1981, the Respondent continued to go to the Raybin home; however, his visits were not in the course of his routine duties but were increasingly to harass Ms. Raybin;

   
   

5. That on or about June 19, 1982, while on duty, the Respondent went to the Raybin home and offered pornographic movies to Ms. Raybin, which offer was refused;

   
   

6. That on or about June 23, 1982, while on duty, the Respondent arrived at the Raybin home with a package of home movies without having been dispatched to the Raybin home, was out of his assigned zone, and did not check out of his unit; and

   
   

7. That because of the foregoing acts, the Respondent is not qualified to hold a certificate as a law enforcement officer because he is guilty of conduct constituting willful neglect of duty, incompetence, and gross misconduct which seriously reduces his effectiveness as a law enforcement officer contrary to the provisions of Sections 943.13 and 943.145, Florida Statutes.

APPEARANCES

For Petitioner: William H. Ravenell, Esquire

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

For Respondent: Charles T. Whitelock, Esquire

1244 SE Third Avenue

Fort Lauderdale, Florida 33316 ISSUES

The parties stipulated that the Respondent held law enforcement certificate number 02-24636; and that, while on duty in December 1981, he responded to a call from Deborah Raybin regarding a malfunctioning alarm system in her home in Broward County, Florida; and that he went to the Raybin home in the routine course of his duties.

The factual issues are:

1. Whether the Respondent harassed Ms. Raybin by going to her home not in the course of his duty;

   
   

2. Whether the Respondent offered Ms. Raybin pornographic movies; and

   
   

3. Whether the Respondent, while on duty, arrived at the Raybin home with a package of home movies when he had not been dispatched to the Raybin home, was out of his assigned zone, and did not check out of his unit.

The legal issue is whether this conduct, if shown to exist, constitutes willful neglect of duty, gross misconduct and incompetence, and a violation of Sections 943.13 and 943.145, Florida Statutes.

Both parties submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Michael L. Illes, holds law enforcement certificate number 02-24636.

   
   

2. On or about December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system at her home in Broward County, Florida. At said time, the Respondent was employed by the Broward County Sheriff's Department in the capacity of a deputy sheriff. The Respondent went to the Raybin home in the routine course of his duties.

   
   

3. The Respondent admitted having been to the Raybin home after December 1981 in response to further false alarms and on other occasions not related to his duties. However, no competent evidence was introduced that the Respondent harassed Ms. Raybin by going to her home while either on duty or off duty.

4. No evidence was received in support of the allegations that the Respondent, while on duty, went to the Raybin home and offered pornographic movies to Ms. Raybin. The only competent evidence presented was the credible testimony of the Respondent that while at the Raybin house on official business on or about June 19, 1982, he was asked by Ms. Raybin for a video tape. Respondent admitted that on the night of June 23, 1982, he arrived at the Raybin house with said video tape. At that time, prior to his ringing Ms. Raybin's doorbell, Respondent was stopped by his shift supervisor and another officer of the Broward County Sheriff's Department. They were there in response to a telephone call from a person whose identity was not established by competent evidence. The Respondent was out of his assigned patrol zone and had not checked out of his patrol car (unit).

   
   

5. While proceeding to the Sheriff's Department prior to the beginning of his shift, Respondent made a traffic arrest of a driver for driving while under the influence. Respondent was involved in booking the arrested driver until after 12:00 midnight on the evening of June 23, 1982. Thereafter, he went to the Raybin house.

   
   

6. On the night shift, the policy regarding leaving an assigned patrol area was flexible, particularly during those periods in which on-duty personnel were on break or eating. While on break, officers were not required to be in their patrol zones. Respondent would have been entitled to a break at the time he was at the Raybin house.

   
   

7. Conflicting testimony was received concerning whether officers were required to check out of their units while on break. The shift supervisor stated that officers were required to check out when on break or at meals. Respondent stated that the night shift officers did not customarily check out on breaks because criminals monitored their radio reports and committed crimes when they knew that the officers were on break or at meals. Neither side could substantiate their testimony with any written policy. No evidence was received regarding when officers would report that they were on break, i.e., when they left their assigned zone, when they arrived at a break location, or when they left their units. Based upon the testimony received and the fact that officers wore portable radio units, it is found that officers were required to check out if they intended to be away from their units for more than a few minutes. When stopped by his shift supervisor, the Respondent was wearing his police radio.

   
   

8. Respondent's uncontroverted and credible testimony was that he had stopped at the Raybin house on his way to his break location to drop off the tape Ms. Raybin had requested and had not intended to remain at the Raybin house longer than was necessary to drop off said tape.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Criminal Justice Standards and Training Commission has authority to discipline certificated law enforcement officers. The record reflects the Respondent is a certificated law enforcement officer. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes.

   
   

10. The Administrative Complaint alleges that the Respondent was incompetent, willfully neglectful of duty, and guilty of gross misconduct contrary to Sections 943.13 and 943.145, Florida Statutes. There are three separate elements of misconduct alleged in the Administrative Complaint, as follows:

    1. That the Respondent harassed Ms. Raybin by going to her home;

    2. That the Respondent offered and delivered pornographic movies to Ms. Raybin; and

    3. That the Respondent improperly left his assigned patrol zone, went to the Raybin house, and failed to properly check out of his unit over the radio.

       
       

11. The Respondent admitted going to the Raybin house both in the line of duty and not in the line of duty between December 1981 and June 1982. However, no evidence was received that the Respondent harassed Ms. Raybin by going to her house. Similarly, no evidence was presented that Respondent offered pornographic movies to Ms. Raybin. The Respondent's uncontroverted and credible testimony was that Ms. Raybin requested to borrow a video tape from him, which he was attempting to deliver on the night of June 23, 1982, when detained by his shift supervisor and another officer. No substantial and credible evidence was admitted into the record that the video tape which the Respondent had with him on that evening was pornographic in nature. The only evidence attempted to be offered was the opinion of the officers who detained the Respondent, who did not see the tape seized that night and whose testimony on this issue was objected to by the Respondent's counsel and sustained. There was no proof that the Respondent initiated the offer of the tape to Ms. Raybin or that said tape was pornographic in nature.

    
    

12. The only remaining allegation of the Administrative Complaint relates to the Respondent's alleged failure to follow proper procedures in leaving his patrol zone, going to the Raybin house, and failing to properly check out of his unit.

    
    

13. The record reflects that the Respondent was involved in booking a drunk driver from prior to the time he would normally have reported to work on the evening of June 23, 1982, until after midnight. He arrived at the Raybin house during the first period of time that he was free to take a break since he had come on duty. During the period that night shift officers were on break and taking meals, they were not required to remain inside their assigned patrol zones. Conflicting testimony was received regarding whether it was required for officers to check out of their units. No evidence was received as to when officers were required to advise the dispatcher that they were on break. Considering the conflicting testimony, the most credible finding is that officers were required to check out with the dispatcher when they left their units for more than a few minutes. It is found, based upon the Respondent's testimony, that he intended to drop off the video tape to Ms. Raybin and proceed on to his break. From the record adduced at hearing, it was not per se inappropriate for the Respondent to be out of his patrol zone, it was not per se improper for the Respondent to be at Ms. Raybin's house, and it was not per se improper for the Respondent to not have checked out with the dispatcher when he left his unit.

    
    

14. No evidence was introduced to rebut the testimony of the Respondent that he was out of his zone on his break and did not intend to remain away from his unit for more than a few minutes. However, assuming it had been proven that the Respondent had not checked out as required, this departure from the policy of the Sheriff's Department falls short of gross negligence, willful neglect of duty, and incompetence. The State of Florida seeks to deprive the Respondent of the right to be a law enforcement officer. This is an extreme penalty and requires substantial proof of a grievous misconduct. The failure on one

    occasion to check out in accordance with proper radio procedures falls short of such conduct.

    
    

15. None of the allegations in the Administrative Complaint were proven by substantial and competent evidence, and the Respondent is not guilty of violating Sections 943.13 and 943.145, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against the Respondent, Michael L. Illes, be dismissed.

DONE and RECOMMENDED this 22nd day of August, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 22nd day of August, 1983.

COPIES FURNISHED:

William H. Ravenell, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Charles T. Whitelock, Esquire 1244 SE Third Avenue

Fort Lauderdale, Florida 33316

G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission

408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 83-000279

Orders for Case No: 83-000279