STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-3588

)

GLENN C. HINGLEDORFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 17, 1986 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Mark A. Cullen, Esquire

1030 Lake Avenue

Lake Worth, Florida 33460 BACKGROUND

By administrative complaint filed on September 17, 1985, petitioner, Criminal Justice Standards and Training Commission, has charged that respondent, Glenn C. Mingledorff, a former highway patrolman, who is certified as a law enforcement officer by petitioner, "did (on May 23, 1984) . . . unlawfully touch Siham Caceres against the will of the said Siham Caceres by touching her breast with his hands," and "did (on February 5, 1983) . . . unlawfully, actually and intentionally touch Nancy Lynn Pearson against the will of the said Nancy Lynn Pearson by, after placing (her) under arrest, feeling her breasts, buttocks and crotch with his hands.1 Petitioner contends that by engaging in the foregoing conduct, respondent violated Subsection 943.1395(5), Florida Statutes (1985), in that "respondent failed to maintain the qualifications established in Section 943.13(7),

Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character." Petitioner proposes to revoke Mingledorff's law enforcement certification for his alleged improprieties.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred to the Division of Administrative Hearings by petitioner on October 18, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated December 4, 1985, the final hearing was scheduled for January 31, 1986 in West Palm Beach, Florida. At the request of petitioner the matter was scheduled to March 3, 1986, and at respondent's request, was rescheduled to April 17, 1986 at the same location.

At final hearing, petitioner presented the testimony of Nancy Lynn Pearson, Lt. Joseph Guthrie and Siham Caceres. It also proferred the testimony of Elisa C. Rickett. Respondent testified on his own behalf.

The transcript of hearing was filed on May 20, 1986.

Proposed findings of fact and conclusions of law were filed by petitioner on June 4, 1986. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

At issue herein is whether respondent's certification as a law enforcement officer should be disciplined for the alleged violations set forth in the administrative complaint.

FINDINGS OF FACT

Based on all the evidence, the following facts are determined:

1. At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession.

   
   

2. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of

   him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol.

   Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner.

3. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials.

4. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and

   left the responsibility of frisking the prisoner to the female attendant at the jail.

   
   

5. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts.

   He also rubbed her crotch area momentarily. Caceres did not

   encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later.

   
   

6. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

8. Respondent is charged with violating Subsection 943.1395(5), Florida Statutes (1985), by virtue of his failing to maintain the qualifications in Subsection 943.13(7), Florida Statutes (1985). The latter subsection requires a law enforcement officer to have "good moral character." The lack of "good moral character" stems from respondent's conduct with Nancy Lynn Pearson and Siham Caceres on February 5, 1983 and May 23, 1984, respectively.

   
   

9. Two issues are raised by the complaint. First, did respondent, while on duty, improperly feel Pearson's breasts, buttocks and crotch with his hands, and improperly touch the breasts of Siham Caceres'? Secondly, if he did, does that conduct equate to a lack of "good moral character" within the meaning of Subsection 943.13(7)?

10. Although the testimony is conflicting, the more credible testimony establishes that Mingledorff did indeed feel Pearson's breasts, buttocks and crotch, and the breasts of Caceres without their consent or encouragement while on duty as a highway patrolman. Therefore, the first question raised above must be answered in the affirmative.

    
    

11. The second question is whether that conduct constitutes a lack of good moral character so as to render Mingledorff ineligible to hold a law enforcement certification. It is concluded that the conduct equates to a lack of good moral character, and that respondent should be decertified. The reasons are set forth below.

    
    

12. The term "good moral character," as it appears in Section 943.13, is not defined. However, some insight into the meaning of the term is provided by Rule llB-27.011(2), Florida Administrative Code. That rule reads as follows:

    
    

    1. For the purpose of revocation pursuant to Section 943.1395(5), F.S., the employing agency shall forward to the Commission a report in accordance with procedures estab- lished in Rule llB-27.03 when:

       
       

       1. An officer has been found guilty of violating Sections 790.17, 790.18, 790.24, 790.27, 796.06, 796.07, 800.02, 800.03, 812.014(2)(c), 812.016, 812.081, 817.035, 817.235, 817.39, 817.49, 817.563, 827.04(2) (3), 827.05, 828.122, 831.31(1)(b), 832.041, 832.05(2), 837.05, 837.06, 843.02, 843.13 843.17, 847.011(1),(2),(4), 847.0125 (2), 876.17; 876.18, 893.13(1)(a)3., (l)(d) 3., (l)(f), (2)(a)1., or (2)(b), F.S.

          
          

       2. An officer has perpetrated any act which would constitute a felony or an offense under subsection (2)(a) of this rule, or committed an egregious act which establishes that the officer is not of good moral character. (Emphasis added)

Since Mingledorff has not been found guilty of any criminal act, section (a) has no application. Similarly, it has not been shown that his conduct constitutes a felony or an offense under subsection (2)(a) of the rule. Subsection (b) requires that an officer commit "an egregious act which establishes that the officer is not of good moral character." The word "egregious" is defined in Webster's Dictionary as "remarkable . . .

extraordinary (and] . . . flagrant." Webster's New Twentieth Century Dictionary Unabridged Second Edition (1979). By taking advantage of two females through his position as a law enforcement officer, and touching their private parts without their consent, Mingledorff has committed two remarkable, extraordinary and flagrant acts which establish his lack of good moral character. Therefore, his certification should be revoked.

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent be found guilty of violating Subsection 943.1395(5), Florida Statutes (1985), as charged in the administrative complaint, and that his law enforcement certification number 02-25390 be REVOKED.

DONE and ORDERED this 16th day of June, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 l6th day of June, 1986.

COPIES FURNISHED:

Joseph S. White, Esquire

P. O. Box 1489

Tallahassee, Florida 32302

Mark A. Cullen, Esquire 1030 Lake Avenue

Lake Worth, Florida 33460

Robert R. Dempsey, Commissioner Florida Dept. of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

ENDNOTE

1/ Although the complaint alleges the Caceres affair occurred on May 23, 1985, the complaint was amended ore tenus at the outset of the hearing to reflect that the correct date was May 23, 1984.

APPENDIX

PETITIONER:

1. Covered in background.

2. Covered in finding of fact 1.

3. Covered in finding of fact 1.

4. Covered in finding of fact 2.

5. Covered in finding of fact 2.

6. Covered in finding of fact 2.

7. Covered in finding of fact 3.

8. Covered in finding of fact 3.

9. Covered in finding of fact 3.

10. Covered in finding of fact 3.

11. Covered in finding of fact 3.

12. Covered in finding of fact 3.

13. Covered in finding of fact 3.

14. Covered in finding of fact 5.

15. Covered in finding of fact 5

16. Covered in finding of fact 5.

17. Covered in finding of fact 5.

18. Covered in finding of fact 5.

19. Covered in finding of fact 5.

20. Covered in finding of fact 5.

21. Covered in finding of fact 6.

22. Rejected as irrelevant.

23. Rejected as irrelevant.

24. Rejected as irrelevant.

25. Rejected as irrelevant.

26. Covered in finding of fact 4.

27. Covered in finding of fact 4.

Docket for Case No: 85-003588

Orders for Case No: 85-003588