STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE No. 88-4787

)

DARRELL B. DANIELS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 22, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondent's certificate as a law enforcement officer should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: Joseph S. White, Esquire

FDLE

208 W. Caroline Street Tallahassee, Florida 32302

Respondent: Darrell B. Daniels, pro se

Post Office Box 310683 Tampa, Florida 33680

BACKGROUND INFORMATION

An Administrative Complaint was filed against the Respondent in this case by Jeffrey W. Long, Director, Division of Criminal Justice Standards and Training, for Petitioner, on July 19, 1988, alleging that Respondent had violated the provisions of Chapter 943, Florida Statutes, by misconduct on July 31, 1985 involving a sexual battery and threats and intimidation. Respondent thereafter disputed the allegations made against him and requested a formal hearing. On September 27, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on October 13, 1988, the case was set for hearing on December 22, 1988 by the undersigned to whom the file had been assigned in the interim.

At the hearing, Petitioner presented the testimony of Marta L. Stowell, a student and victim of Respondent's alleged misconduct; Jack Stephens, a Sergeant with the Tampa Police Department; Jerry Herren, a Detective with the Tampa Police Department; and Harry J. Kendrick, Manager of the Restoration program for the Commission, and introduced Petitioner's Composite Exhibits 1 and 2.

Respondent did not testify in his own behalf nor did he present any evidence.

He made an argument denying his guilt but it was not in the form of testimony nor was it under oath. It is not, therefore, considered evidence.

A Transcript of Proceedings was furnished. Petitioner submitted Proposed Findings of Fact which, as appropriate, have been accepted and incorporated in this Recommended Order. Respondent submitted a statement after hearing, but it does not contain any matters requiring mention in this Order or its Appendix.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Respondent, Darrell B. Daniels, was certified as a Law Enforcement Officer by the Criminal Justice standards and Training Commission having been issued certificate number 02- 34831, on December 2, 1983.

   
   

2. At approximately 10:30 PM on July 31, 1985, seventeen year old Marta Stowell was picked up from work at a Tampa shopping center by her boyfriend, twenty-two year old Terry Hickock, and the two drove to a public beach located along the Courtney Cambell Causeway, in Tampa, in her car, arriving at approximately 11:00 PM, and parking behind some bushes in a wooded area of the beach. They then began necking which escalated into heavier contact and as a result, the parties moved into the back seat and disrobed.

   
   

3. A short time later, they heard the approach of a car which stopped a short distance behind their vehicle. A few moments later, an individual with a flashlight came up to the car door and shined the light through the closed window on them. The person also tapped on the window and said, "Hello, there."

   
   

4. The individual with the light appeared to be a uniformed police officer and the car he was driving was a police car. This individual, who the parties identified as Respondent, instructed them to open their car door and they complied. He then advised them that because they were nude, they were committing an illegal act in a public place. Respondent asked them their ages and when Ms. Stowell told him she was seventeen, he told them he was going to have to arrest her boyfriend for contributing to the delinquency of a minor. He also indicated he might have to place Ms. Stowell in a juvenile detention center and inform her mother of her conduct.

   
   

5. Ms. Stowell was very upset at this prospect and began crying and begging Respondent not to arrest her boyfriend. In response to her pleas, Respondent told the couple, who had not yet been permitted to get dressed, that he felt sorry for them and thought he might be able to think of a way to get them, "off the hook."

   
   

6. Respondent then walked over to his police car for a moment and then returned, kneeling at the open door, approximately an arm's length from Ms. Stowell. He told them he would let them go if they would "embarrass" themselves in his presence, and advised them to continue what they had been doing before he interrupted, while he watched.

   
   

7. At the Respondent's direction, Ms. Stowell and Mr. Hickock then resumed the oral sex in which they had been involved when interrupted, for approximately eight to ten minutes, switching positions after a few minutes, while Respondent watched the entire time from a few feet away.

   
   

8. While this was going on, Ms. Stowell felt degraded by being required to commit the act in front of a stranger and participated in it against her will

   only to prevent Respondent from arresting her boyfriend and from notifying her mother.

   
   

9. While the couple was engaged in oral sex, Respondent, according to Ms. Stowell, touched her thigh, put his hand in her crotch area, and penetrated her vagina with his finger, all without her consent.

   
   

10. Respondent then advised the couple he wanted them to engage in intercourse and when they told him that they had never done that before, he advised them that their choice was either to do as he said or he, Respondent, would have intercourse with Ms. Stowell. As a result, the parties tried to engage in an act of intercourse while Respondent watched but were unsuccessful. Respondent again threatened to have intercourse with Ms. Stowell but, apparently, decided against it. Though she had not previously engaged in intercourse with Mr. Hickock, Ms. Stowell agreed to attempt the act with him because she was fearful of the threat by Respondent to engage in intercourse with her if she did not perform with Mr. Hickock.

    
    

11. When it became obvious that Stowell and Hickock were not going to be successful, Respondent took down Stowell's and Hickock's names, phone numbers, and home addresses. He then warned them not to tell anyone what had happened and not to acknowledge that they had seen him. He advised them that if they told anyone of what had happened, he would arrest Mr. Hickock. Respondent then got back in his patrol car and left the area.

    
    

12. Between 7:00 and 8:00 AM the following morning, Ms. Stowell received a phone call at home from Respondent. He told her something had gone wrong with her tag number and that she must meet him to talk about what could be done about it. He said he would be in his civilian clothes driving his personal car, and she agreed to meet him at a local shopping mall she suggested. She did not show up, however, because she was afraid of being raped by him.

    
    

13. Instead of meeting with Respondent, Ms. Stowell told her parents about the beach incident the night before and, thereafter reported the matter to the Tampa Police Department. The case was assigned to Detective Jerry Herren, who, during the course of his investigation, took a sworn statement from Mr. Hickock about the incident. Approximately two months later, Mr. Hickock was killed in a traffic accident. A few days after taking this statement, and based on information discovered during the investigation, on August 8, 1985 Herren arrested Respondent for the offenses outlined in the complaint. Subsequent to the arrest, Herren advised Respondent of his rights against self incrimination and took a statement from him in which Respondent admitted to having contacted Stowell and Hickock at the causeway on July 31, 1985, and having contacted Ms. Stowell the next day to ask her to meet him when he was off duty. He denied, however, that he had in any way threatened her or that he had touched her. His denial, however, was somewhat weakened by the statement of Gail Perry, who complained that on July 19, 1985, she had been involved in an incident with Respondent similar to that alleged by Ms. Stowell. In the Perry case, there was no touching, but there was an offer by Respondent to "forget about" Ms. Perry's lascivious misconduct if she would perform an act of fellatio on him. In the Perry case, as in the Stowell case, Respondent secured his victim's home phone number and the following morning, called in an attempt to obtain a date. Respondent thereafter admitted to Herren that he contacted Ms. Perry both while she was with her boyfriend and again, by phone.

    
    

14. Respondent declined to testify or present any evidence in his own behalf. He made an argument, or summation, which contained statements of

    apparent fact, but, since the information was not produced under oath as evidence, it cannot be considered as evidence in opposition to the matters presented by the Petitioner. Consequently, the testimony of Ms. Stowell and that of the police officers who investigated her complaint is uncontradicted and it is found that, as alleged, Respondent committed a sexual battery on Ms.

    Stowell and used his position as a police officer in an improper manner in an effort to get her and Mr. Hickock to engage in sexual activity in his presence.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The minimum qualifications for certification as a law enforcement officer in Florida are outlined at Section 943,13, Florida Statutes, where, at subsection (7), the statute provides that an applicant must:

    
    

    Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

17. Once an applicant has met these criteria and been certified, Section 943.1395 (5), provides that:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1) - (10)...

    
    

18. The requirement for good moral character as called for in subparagraph

    (7) falls within this subsection.

    
    

19. Section 943.1395(6) allows the Commission to, in lieu of revocation, impose certain less severe penalties.

    
    

20. Rule 11B-27.001(4) (a), F.A.C., includes the perpetration of an act which would constitute a felony offense as evidence of a failure of a certified officer to maintain good moral character. This rule was adopted on October 26, 1988, subsequent to the actions of the Respondent and may not be controlling in this case. However, good moral character has also been defined in the courts, (Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1DCA 1977) as:

    
    

    ... not only the ability to distinguish right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

21. Here, the uncontroverted evidence is clear and convincing that on July 31, 1985, while serving as a police officer in the official performance of his duties, Respondent committed a sexual battery on Marta Stowell by stroking her thigh, placing his hand in her crotch area, and inserting his finger in her vagina. The evidence is also clear and uncontroverted by any evidence of record, that on the same evening, he coerced Ms. Stowell and Mr.Hickock into

    performing sexual acts including cunnilingus, fellatio, and attempted sexual intercourse in his presence while he observed. Under no acceptable standard can this misconduct be considered appropriate action for a law enforcement officer. The prurient and depraved nature of Respondent's misconduct in these particulars clearly constitutes evidence of a lack of good moral character and subjects him to disciplinary action under the provisions of the statute.

    
    

22. Respondent's current misconduct is more than sufficiently egregious to support the most severe punishment. However, Respondent has repeatedly abused his position as a law enforcement officer. His efforts to secure sexual favors from Ms. Perry are directly parallel to his misconduct here. Consequently, his continued certification as a law enforcement officer is not in the best interests of the community or the public.

    
    

23. Respondent claims in argument that he was acquitted of criminal charges arising out of the incident involving Ms. Stowell and Mr. Hickock. The evidentiary test in a criminal prosecution is substantially more strict than that in an administrative hearing such as this, and it having been found that Respondent committed the acts alleged and that these acts indicated a lack of good moral character, the administrative action called for under the statute is appropriate and should be applied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent's certification as a law enforcement officer be revoked.

RECOMMENDED this 6th day of February, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 6th day of February, 1989.

COPIES FURNISHED:

Jeffrey Long, Director Criminal Justice Standards

Training Commission

P.O. Box 1489 Tallahassee, FL 32302

Daryl McLaughlin Executive Director

P.O. Box 1489 Tallahassee, FL 32302

Rodney Gaddy General Counsel

P.O. Box 1489 Tallahassee, FL 32302

Joseph S. White, Esquire Assistant General Counsel Dept. of Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

Darrell B. Daniels

P.O. Box 310683 Tampa, FL 33680

Docket for Case No: 88-004787

Orders for Case No: 88-004787