STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) LAW ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2222

)

RANDALL B. CADENHEAD, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, in the City Hall, Daytona Beach, Florida on January 6, 1984. This Recommended Order is being entered following the receipt and review of the transcript which was filed with the Division of Administrative Hearings on April 9, 1984. The parties to this action, in the person of their counsel, have also filed proposed Recommended Orders, the last of which was received by the Division of Administrative Hearings on May 14, 1984. Those proposals have been reviewed prior to the entry of the Recommended Order. To the extent that the proposals are consistent with the Recommended Order they have been utilized. To the extent that the proposals are inconsistent, they are rejected as being immaterial, irrelevant or contrary to facts found.

APPEARANCES

For Petitioner: John Booth, Esquire

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

For Respondent: Joseph T. Garlovsky, Esquire

444 Seabreeze Boulevard, Suite 850 Daytona Beach, Florida 32018

ISSUES

The issues in this instance are promoted in keeping with an administrative complaint brought by the Petitioner against the Respondent, charging violations of Sections 943.13 and 943.145, Florida Statutes. These allegations relate to the claim that Respondent was involved in a liaison with a prostitute in which he exchanged Valium for sex. The encounter between the Respondent and the prostitute is alleged to have occurred while the Respondent was on duty. This Valium was allegedly obtained from an automobile which was examined as part of the Respondent's duties as a law enforcement officer. It is further alleged

that the Valium should have been turned in as part of his responsibilities as a law enforcement officer.

FINDINGS OF FACT

1. Respondent is a holder of a certificate as law enforcement officer, Certificate No. 98-10527. That certificate is issued by the State of Florida, Department of Law Enforcement, Criminal Justice Standards and Training Commission, and Respondent has held that certificate at all relevant times in this proceeding. Respondent has been employed as a police officer by the Daytona Beach, Florida, Police Department in the relevant time period and it was during that tenure that Respondent is accused of having committed the offense as set forth in the administrative complaint.

   
   

2. Debbie Ofiara is the only witness to the Respondent's alleged indiscretion while on duty. Ms. Ofiara is an admitted prostitute, who has drug problems so severe that she required specific program treatment to address them. In particular, that drug difficulty relates to the drug Dilaudid. In addition, Ofiara has served six months in jail for grand theft, a felony conviction. At the time of the alleged incident with the Respondent she was under the influence of drugs and was under the influence of drugs when she reported that incident to a police investigator in the Daytona Beach Police Department. When testimony was given at the hearing, Ofiara was attending a drug program while awaiting a sentence for a drug offense related to cocaine. She had pled guilty to that drug charge, a felony. Ofiara has been arrested for prostitution, arrests made by the Daytona Beach Police Department on three different occasions. She had been arrested for hitchhiking by Officer Cadenhead prior to the incident which underlies the administrative charges and indicates that she "took offense" at the arrest. Moreover, she acknowledges some past concern about her treatment in encounters with Officer Gary Gallion of the Daytona Beach Police Department in his official capacity.

   
   

3. Ms. Ofiara claims that sometime in November 1982, in the evening hours, the Respondent, while on duty as a police officer, in uniform and driving a marked patrol car, approached Ofiara and made arrangements to meet her. She further states that this rendezvous occurred in Daytona Beach, Florida, and that in exchange for Valium tablets which the Respondent had obtained from an examination of a car he had been involved with in his police duties, which tablets were not turned in, Ofiara performed oral sex for Respondent's benefit.

   
   

4. Some time later, Ofiara related the facts of the encounter with Officer Cadenhead to an internal affairs investigator with the Daytona Beach Police Department, Lieutenant Thomas G. Galloway. She also gave Galloway a bottle which she claimed was the bottle in which the Valium was found. The vial or container was not examined for any residue of the substance Valium or examined for fingerprints of the Respondent. Following Galloway's investigation of the allegations, the Daytona Beach Police Department determined to terminate the Respondent from his employment. That termination was effective February 11, 1983. Respondent was subsequently reinstated after service of a four-week suspension without pay by order of the City of Daytona Beach Civil Service Board, effective March 9, 1983.

   
   

5. Having considered the testimony of Ms. Ofiara and the testimony of the Respondent in which he denies the incident with her, and there being no corroboration, Ms. Ofiara's testimony is rejected for reasons of credibility.

   As a prostitute, drug user, felon and person with a certain quality of animosity

   toward the Respondent and in consideration of the demeanor of the accusing witness and Respondent, her testimony is rejected.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Chapter 120, Florida Statutes.

   
   

7. Petitioner seeks to discipline the license of the Respondent based upon the Respondent's alleged failure to maintain qualifications established pursuant to Chapter 943.13, Florida Statutes, related to good moral character, as implemented by Section 943.145(3)(a), Florida Statutes. Respondent is further accused of gross immorality and gross misconduct which seriously reduced his effectiveness to function as a law enforcement officer within the meaning of Section 943.145(3)(c) Florida Statutes. All these accusations relate to the liaison with Ofiara in which Respondent utilized drugs obtained from another law enforcement responsibility in exchange for oral sex performed by Ofiara, with neither the existence of the drug nor the encounter with Ofiara being made known to appropriate officials. These accusations have not been proven and no violation is established, for reason that Ofiara's testimony is not believable.

Based upon a full consideration of the facts and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which dismisses the administrative complaint with prejudice for failure of proof.

DONE AND ENTERED this 5th day of June 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 5th day of June 1984.

COPIES FURNISHED:

John Booth, Esquire Dennis Valente, Esquire State of Florida

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Joseph T. Garlovsky, Esquire

444 Seabreeze Boulevard, Suite 850 Daytona Beach, Florida 32018

Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 83-002222

Orders for Case No: 83-002222