STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2724

)

JOSE S. GALVAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on November 16, 1988, in Homestead, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Office of General Counsel Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32392

For Respondent: Ronald J. Cohen, Esquire

Klausner & Cohen, P.A. 1922 Tyler Street

Hollywood, Florida 33020 PRELIMINARY STATEMENT

By administrative complaint dated March 31, 1988, petitioner charged that respondent violated the provisions of Sections 943.13(7) and 943.1395(5), Florida Statutes. The gravamen of petitioner's charge is that respondent lacks the good moral character essential to qualification as a law enforcement officer because of the use of excessive force or threats against prisoners.

At hearing, petitioner called as witnesses: Rodney Clayton, Robert A. Harrelson, Donald S. Kennedy, Mark Jefferson, Jimmy Carey, Kenneth Russell, and Harry J. Kendrick. Petitioner's exhibits 1-4 were received into evidence.

Respondent testified on his own behalf, and called James McLaughlin, Marie D. Kent, Gary Downs, and Maria Galvan as witnesses. Respondent offered no exhibits.

The transcript of hearing was filed December 12, 1988, and the parties were granted leave until January 20, 1989, to file proposed findings of fact. The parties' proposed findings are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Jose S. Galvan (Galvan) , was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission (Commission), on December 14, 1984, and was issued certification number 19-84-002-05.

   
   

2. At all times material hereto, Galvan was employed as a police officer by the City of Homestead, Florida.

   
   

3. By administrative complaint dated March 31, 1988, the Commission charged that Galvan lacked the good moral character required of a law enforcement officer because he had used excessive force in the arrest of one John Delvalle and did unlawfully assault one Jimmy Carey, a prisoner, with a pistol. Galvan denied the allegations of the administrative complaint, and the matter was referred to the Division of Administrative Hearings for a formal hearing.

   
   

   The John Delvalle incident.

   
   

4. On May 12, 1986, between 11:30 p.m. and midnight, Galvan was on routine patrol for the City of Homestead. At that time Galvan observed two males, one of whom was later identified as John Delvalle, fighting in the parking lot of a shopping center.

   
   

5. Galvan proceeded to the shopping center, but before exiting his patrol car to confront the combatants, radioed for a backup officer to assist him. Officer Rodney Clayton took the call, and proceeded toward the shopping center.

   
   

6. Before Officer Clayton arrived at the scene, Galvan exited his patrol car and ordered the combatants to stop fighting. One of the combatants stopped fighting but the other, John Delvalle, kept his fists up and announced his intention to continue the fight. Galvan again ordered Delvalle to stop fighting or he would be arrested. When Delvalle persisted, Galvan attempted to arrest him, but Delvalle bolted from the area.

   
   

7. When Delvalle bolted, Galvan radioed the dispatcher that the suspect was running from the scene, and then took up a foot pursuit after Delvalle. At this time, Officer Clayton arrived at the shopping center, and observed Galvan in pursuit of Delvalle.

   
   

8. Officer Clayton drove his patrol car parallel to Delvalle's line of flight, overtook him, and then stopped his car in front of Delvalle to block his escape. At this point, Delvalle was approximately two feet from the patrol car, and was leading Galvan by one or two hundred feet.

   
   

9. When Officer Clayton stopped his car Delvalle immediately raised his hands, dropped to one or two knees and exclaimed "I give up. I stop." Officer Clayton then grabbed Delvalle's left hand, put it behind his back and began handcuffing him. During this period, Delvalle was submissive to arrest and made no threatening gestures.

   
   

10. As Delvalle was being handcuffed, Galvan arrived and announced loudly to Delvalle words to the effect "Don't you ever run from me again" or "Don't you run from the cops again", and kicked Delvalle twice in the side of the face,

    causing his head to strike the concrete. As a consequence, Delvalle suffered lacerations to his head, blurred vision in the right eye, and facial swelling.

    
    

11. Galvan's conduct toward Delvalle was unwarranted, and committed when Delvalle was peacefully submitting to arrest.

    
    

    The Jimmy Carey incident.

    
    

12. On May 28, 1986, Detective Robert Harrelson of the Homestead Police Department arrested a burglary suspect named Jimmy Carey. Carey had initially fled from the officers who sought to arrest him, but upon being apprehended was submissive and quiet.

    
    

13. Carey was placed in Galvan's patrol car for transport to the Homestead Police Station. During the course of the ride, Carey continued to behave submissively and, continuing his quiet behavior, engaged in no conversation with Galvan.

    
    

14. Upon arrival at the station, Galvan escorted Carey into the booking room, removed his handcuffs, and directed him to be seated on a bench at the opposite side of the room. Carey complied, and seated himself on the bench next to another prisoner, Fralon Warren, who was then being processed by the jailer Mark Jefferson. This bench was located 10 to 15 feet from the entry door. The jailer's desk, at which Jefferson was seated, was located midway between the door and the bench.

    
    

15. Before entering the booking room, it is the policy of the City of Homestead Police Department that officers remove their service revolvers and secure them in a lock box located at the entry door. Galvan was aware of such policy but chose, as apparently other officers occasionally did, to ignore such policy because he thought he would be in the booking room for only a short period of time. Galvan's action was not prudent in view of the potential for violence within the booking room, and his decision to ignore departmental policy was unwarranted.

    
    

16. While Carey was seated on the bench with prisoner Warren and Galvan was standing at the door some 10 to 15 feet away, Galvan overheard a comment of Warren's which he attributed to Carey. Although the proof fails to disclose the nature of the comment, it does demonstrate that Galvan found it offensive because upon its utterance he pulled his service revolver, pointed it at Carey and announced "Low-lifes like you have no reason to live for what you did."

    When Carey started to say something, Galvan cut him off and announced "you say one more thing to me, I'll blow your brains out."

    
    

17. At this point jailer Jefferson interceded and told Galvan there was no need for his presence in the booking area. Thereupon, Galvan holstered his service revolver and departed.

    
    

18. Galvan's conduct toward Carey was unwarranted because there was no real or immediate danger to himself or others. Rather, the proof demonstrates that Galvan reacted to a comment he found offensive, and as a result placed Carey in a position of fear for his life.

    
    

    Galvan under stress?

    
    

19. At hearing, Galvan's wife testified that during the time in question she felt her husband was under a great deal of stress due to their separation

    and his police work, and that the Homestead Police Department was nonresponsive to her requests for assistance. Galvan did not, however, suggest that stress was the catalyst for his actions but, rather, denied that he committed any of the offenses. Considering the evidence in toto, the proof fails to support the conclusion that Galvan's actions were precipitated by severe emotional distress, and such suggestion does not, therefore, mitigate the seriousness of his conduct.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

21. Pertinent to this case, Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in the State of Florida, which include the requirement that such officers:

    
    

    (7) Have good moral character....

    
    

22. Should a law enforcement officer fail to maintain a good moral character following certification, the Commission is authorized to revoke, suspend, or otherwise discipline such certification. Section 943.1395(5) and (6), Florida Statutes.

    
    

23. Currently, a failure to maintain good moral character is defined by rule 11B-27.0011(4)(c), Florida Administrative Code, as follows:

    
    

    The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime. ...

    
    

    Such definition is consistent with existent law. Florida Board of Bar Examiners

    v. G.W.L., 364 So.2d 454 (Fla. 1978), and Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977)

    
    

24. In the instant case, the proof is clear and convincing that Galvan committed the acts in question, and that such acts raise substantial doubt concerning his honesty, fairness and respect for the rights of others, and the laws of the state and nation. Due to the egregious nature of the acts committed by Galvan, revocation of his certification is appropriate.

    
    

25. As a bar, at least in part, to his prosecution in this administrative proceeding, Galvan contended that he was tried criminally for the incident involving Jimmy Carey, and acquitted. The proof failed, however, to demonstrate the requisite similarity of issues, similarity of parties, similarity of interests, or similarity of proof necessary for application of the doctrines of res judicata or collateral estoppel. See e.g. Wally v. Florida Game and Fresh Water Fish Commission, 501 So.2d 671 (Fla. 1st DCA 1987). Accordingly, Galvan's acquittal of a criminal offense charged as a result of the Carey incident, the specifics of which do not appear of record in this case, was not shown to bar the subject proceeding.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Galvan's certification. DONE and ENTERED this 17th day of March, 1989, in Tallahassee, Leon County,

Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1989.

APPENDIX

The Commission's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2-16. Addressed in paragraphs 4-11.

17-26. To the extent necessary addressed in paragraphs 4-11.

Otherwise rejected as testimony or subordinate.

27-41. Addressed in paragraphs 12-18. Otherwise rejected as testimony or subordinate.

Galvan's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 4.

3. Addressed in paragraph 5. 4-7. Addressed in paragraph 6.

8. Addressed in paragraph 7.

9-10. Addressed in paragraph 7. Otherwise rejected as not supported by credible proof.

11-12. Addressed in paragraphs 5, 7, and 8. The proposal that Officer Clayton slapped Delvalle in the face is rejected as not supported by credible proof.

13-16. Rejected as not supported by credible proof. See paragraphs 9-11.

17. Rejected as subordinate or not relevant. 18.-19. Addressed in paragraphs 12 and 13.

20. Rejected as not supported by credible proof. See paragraph 13.

21.-23. Addressed in paragraphs 14 and 15.

24.-25. Rejected as not supported by credible proof. See paragraphs 16-18.

the findings made in paragraphs 16-18.

30. Addressed in paragraph 19.

COPIES FURNISHED:

Joseph S. White, Esquire Office of the General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Ronald J. Cohen, Esquire Klausner & Cohen, P.A.

1922 Tyler Street

Hollywood, Florida 33020

Jeffrey Long, Director Criminal Justice Standards and

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

Daryl McLaughlin Executive Director

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

Docket for Case No: 88-002724

Orders for Case No: 88-002724