STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1400

)

FULLER W. CREWS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer. The appearances were as follows:

APPEARANCES

For Petitioner: Joseph F. White, Esquire

Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

For Respondent: Robert J. Link, Esquire

Howell Lyles and Milton

901 Blackstone Building

P.O. Box 420

Jacksonville, Florida 32201 STATEMENT OF THE ISSUES

The issues to be resolved in this cause concern whether the Respondent's law enforcement officer certification should be revoked or other sanctions imposed against such licensure on account of an alleged failure to maintain the qualifications set forth in 943.13(7), Florida Statutes, which requires a law enforcement officer to possess good moral character. Specifically, the factual issue to be resolved concerns whether the Respondent violated this provision by threatening to accuse an automobile driver of a traffic infraction, with the intent to compel her to engage in a sex act with the Respondent.

PRELIMINARY STATEMENT

This cause arose upon an amended administrative complaint filed by the above-named Petitioner seeking to revoke the law enforcement Officer certification of the Respondent, Fuller W. Crews, Sr. In essence, the complaint charges that the Respondent failed to maintain the qualifications set forth under the above statutory subsection requiring the maintenance of good moral character. It is charged that on an unknown date in November 1986, the

Respondent stopped one Diane Bouchard, a 26-year-old woman, driving alone on

1. Highway 1 in Nassau County, Florida. The Respondent allegedly stopped her for speeding and upon approaching her vehicle allegedly threatened to accuse her of the infraction of excessive speed, with the intent to compel her to engage in a sex act with the Respondent.

   
   

   The cause proceeded to hearing as noticed. The Petitioner adduced the testimony of Diane Bouchard, the complaining witness, and Chuck Moser of the Nassau County Sheriff's Department. The Respondent presented the testimony of Fuller W. Crews, Sr. on his own behalf. At the conclusion of the proceeding, the parties elected to obtain a transcript thereof and to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders.

   Those proposed findings of fact have been considered in the formulation of this Recommended Order and are addressed specifically in the Appendix attached hereto and incorporated by referenced herein.

   
   

   FINDINGS OF FACT

   
   

   1. It was stipulated that the Respondent was certified as a law enforcement officer by the Petitioner on April 1, 1978. He holds certificate number 99-002304. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing the qualification and practice standards for law enforcement officers embodied in Chapter 943, Florida Statutes.

      
      

   2. Sometime in November, 1986, Diane Bouchard was traveling north on U.S.

      1 in Nassau County. She acknowledged that she was traveling in excess of the lawful speed limit and believes she was traveling at approximately 60 miles per hour. Shortly after passing a truck weighing station, she observed a Nassau County Sheriff's patrol car, which had just passed her, turn around and follow her. She observed the blue light on that vehicle illuminate, at which point she turned to the side of the road and stopped.

      
      

   3. Mrs. Bouchard knew Officer Crews and he was acquainted with her and her family, including her husband. Mrs. Bouchard testified that Respondent got out of his patrol car and approached her vehicle while she was sitting in her parked vehicle behind the wheel. He did not ask her to get out of the vehicle. She says that he asked for her driver's license and she complied, handing Respondent her license.

      
      

   4. Mrs. Bouchard then testified that Respondent, while standing approximately 4 inches from her car door, told her that he had "clocked" her speed at approximately 75 miles per hour. He remarked that there was an $80 fine for such a traffic infraction and "points" which could be assessed against her driving record for a speeding violation. She stated that while he was standing next to her car door making these remarks, he began rubbing his penis through his clothing, becoming visibly sexually aroused. At approximately this same time, Mrs. Bouchard states that the Respondent told her that "we could work something out" regarding the ticket. Mrs. Bouchard then testified that the Respondent's actions and statement were taken by her to mean that he was attempting to extort sexual favors from her in return for forbearing to issue her a traffic citation. She maintains that she became extremely frightened as a result of these actions and attempted to dissuade the Respondent by reminding him that he knew her family. She maintains that the Respondent then stood alternately looking at her and looking at her driver's license for several more minutes and then announced that he was going to "let her go." She then drove home, according to her statement.

   5. Mrs. Bouchard maintains that she became very upset at this episode and was particularly sensitive to being victimized in this way because she had been sexually abused for approximately 13 years by her stepfather, even after she was married. She was reluctant to reveal the incident to her husband, but because she began having nightmares about the incident her husband became concerned, and so she told him about the episode approximately a week after the accident. She felt, however, according to her testimony, that no one would believe her if she reported the incident to law enforcement authorities. Approximately three months after the incident, however, she did report the matter to personnel of the Nassau County Sheriff's Department.

      
      

   6. The alleged incident supposedly occurred in close proximity to a truck weighing station at which a law enforcement officer was present and in close proximity, in the other direction, to a public campground. The incident occurred during daylight hours at approximately 5:30 or 6:00 p.m. on U.S. 1, a heavily traveled highway in Nassau County. The weigh station and campground are approximately a quarter of a mile apart. A Department of Transportation patrol car was at the weigh station and both the weigh station and the campground were in sight of the place where Mrs. Bouchard was allegedly stopped. Officer Crews was in uniform in a marked, Nassau County Sheriff's Patrol car.

      
      

   7. Mrs. Bouchard conceded that she had been speeding when she was pulled over and that Officer Crews never asked her to get out of her car. She conceded that he did not threaten her, touch her or actually expose himself to her. He did not write her a ticket.

      
      

   8. Mrs. Bouchard testified the reason she thought Officer Crews was "coming on" to her was because she associated certain gestures he was making with things her stepfather had done to her in the past. Mrs. Bouchard was referring to the history of sexual molestation of herself by her stepfather which she says occurred for an approximate 13-year-period after her mother kidnapped her from her natural father and she went to live with her mother and stepfather.

      
      

   9. During this time period and during the time in which Mrs. Bouchard elected not to report this alleged conduct by the Respondent, she and her husband were working at a garage that serviced Sheriff department vehicles and at which another police officer was employed. Police officers were frequent visitors to the garage, but she waited over three months before she spoke to anyone in law enforcement concerning this incident.

      
      

   10. Captain Chuck Moser of the Nassau County Sheriff's Department testified on behalf of the Petitioner. He interviewed Mrs. Bouchard on January 6, 1987. She told him that the above-described incident had occurred approximately 3 months earlier. She described the incident to Captain Moser much in the same way in which she described it in her testimony at hearing. Captain Moser did not reveal any other knowledge concerning the incident in question, and the Respondent, other than what Mrs. Bouchard had told him.

       
       

   11. Fuller Crews testified on his own behalf. He is 58 years old and has been married for the past 16 years. He was employed by the Nassau County Sheriff's Department from April 1, 1978 to November 10, 1987. In 1986, he was a lieutenant in the civil division and a traffic patrolman. He knows Mrs. Bouchard and her family and has even been fishing with her husband.

       
       

   12. In his work with the Sheriff's office, he has made several hundred traffic stops during his career. He does not remember every person that he ever

       stopped for a traffic infraction, nor did he make a practice of issuing a traffic citation to every person he stopped. Officer Crews often simply told offenders that he would let them go if they promised to slow down, or otherwise warned them with a lecture, depending upon the particular offender's attitude. He has no recollection of stopping Mrs. Bouchard, but does not deny that he may have done so. He adamantly denies ever asking Mrs. Bouchard for sex in exchange for forbearing giving her a traffic citation or making gestures which implied that intent. He stated that if he made any gestures in the act of getting out of his car and walking up to Mrs. Bouchard's car, it would have been in the nature of adjusting his gun belt or brushing his cigarette ashes off his trousers.

       
       

   13. The testimony of the Respondent and Mrs. Bouchard thus conflicts. There were no other witnesses to the episode. It is found that, even if Mrs. Bouchard did indeed feel that the Respondent was making sexual advances to her in return for his refraining from writing her a traffic citation, that her impression was mistaken. In reaching this finding, the Hearing Officer is mindful of the Respondent's apparent sincerity and candid demeanor on the witness stand, his past unblemished record, including his apparent record as a decent citizen and family man, as well as the unrebutted testimony concerning his past friendly relations with Mrs. Bouchard and her family. Mrs. Bouchard, on the other hand, while she may not have overtly lied about the circumstances of the incident, was mistaken in her impression of the Respondent's demeanor and intent in confronting her about the traffic infraction. It is found, based in part of Mrs. Bouchard's own testimony, that her impression of the Officer's intent in approaching her and manner of conversing with her, during this episode, was affected by her admitted past history of being sexually molested for a long period of time by her stepfather, such that she quite likely could have mistakenly associated some gestures, movements and comments made by the officer with a sexual advance or overture, when in fact the Respondent intended no such activity. Thus, Mrs. Bouchard's opinion, however sincere she holds it, is sufficiently colored and affected by her emotional situation, arising out of her past personal history, so that it cannot be considered competent evidence against the Respondent and cannot establish that the incident occurred as she described it. There is no other substantial evidence that would establish that the Respondent failed to maintain good moral character in regard to this incident, which is the only such incident charged in the Administrative Complaint.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Subsection 120.57(1), Florida Statutes (1987)

       
       

   15. Section 943.13, Florida Statutes establishes the minimum qualifications for law enforcement officers in Florida at subsection (7), which provides:

       
       

       have a good moral character as determined by a background investigation and the procedure established by the Commission.

       Section 943.1395(5), requires:

       
       

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

       
       

   16. Rule 1B-27.0011(4), Florida Administrative Code provides a definition of "good moral character" for purposes of the implementation of disciplinary action upon Florida law enforcement officers. The Rule states in relevant portion:

       
       

       (4) For the purposes of the Commission's implementation of any of the penalties enumerated in Section 943.1395(6) a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as: ...

       
       

       (c) The perpetration by the officer of the 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.

       
       

   17. There is no doubt that had the incident occurred as Mrs. Bouchard described it that this would be an act by a law enforcement officer which failed to meet the definition of good moral character provided in the above-quoted authority. However, the above findings of fact, especially those concerning resolution of the conflicts in the testimony of the Respondent and Mrs. Bouchard, reveal, indeed, that there is no competent, substantial evidence of a clear and convincing nature which can establish that the episode occurred as charged in the Administrative Complaint and as described in Mrs. Bouchard's testimony. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   18. In fact, the Respondent's testimony was more credible than that of Mrs. Bouchard and is accepted. In essence, Mrs. Bouchard's accusatory testimony amounts to the fact that the Respondent made the statement to the effect that "we can work something out" and made a gesture that she saw as Officer Crews rubbing his genital area. Officer Crews, however, explained in his testimony that he often told offenders during traffic stops that he would not issue them a ticket if they would agree not to speed anymore. He said that he often said such things as "I will make a deal with you. You slow down and I won't issue you a ticket." The statement "I will make a deal with you" is equally ambiguous as "we can work something out" when taken out of context or when misinterpreted. There is nothing inherently wrong or immoral about the statement "We can work something out," especially when considered in the context in which it was intended by Officer Crews. The record does not reveal what the Respondent did, if anything, which Mrs. Bouchard perceived as "rubbing himself." Officer Crews was not able to recall the incident. He did establish that officers with the Nassau County Sheriff's Department wear uniforms with wide gun belts holsters and boots. The natural reaction, indeed his own reaction, as he described it, in getting out of the patrol car after riding around, is to straighten up his disheveled clothes. Pants will ride up, belts have to be adjusted, pants have to be adjusted to cover the boots when one starts to walk. If one smokes, as Officers Crews did, and has ashes on his uniform, he might be brushing them off as he walks up to the offender's car. If one has an itch, one might scratch it.

   19. If indeed the statement and the gestures were made, they are subject to interpretation. If one were to accept the interpretation ascribed to it by Mrs. Bouchard, one would accept the testimony to that effect of a young woman who had undergone very traumatic and emotionally disabling experiences for some

       13 years. By Mrs. Bouchard's own admission, she associated Mr. Crews' purported gestures and comment with things her stepfather had done to her. She conceded that this was the reason she believed that Officer Crews was "coming on to her." It is thus concluded that her experience with her own stepfather forms the primary basis for her interpretation of what she thought happened at the incident in question.

       
       

   20. In summary, there is simply a dearth of clear and convincing testimony or evidence to substantial, justify the discipline of the law enforcement officer based upon such uncorroborated and totally subjective interpretations and allegations. It is concluded that the complaint should be dismissed.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that the Administrative Complaint filed against Fuller W. Crews, Sr. should be dismissed in its entirety.

DONE AND ENTERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER NO. 89-1400

Petitioner's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted.

4 Accepted.

1. Accepted.

2. Accepted.

7.-17. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in accordance with the clear and convincing evidence of record.

18. Accepted.

Respondent's Proposed Findings of Fact 1.-13. Accepted.

COPIES FURNISHED:

Joseph F. White, Esquire Department of Law of

Enforcement

P.O. Box 1489 Tallahassee, FL 32302

Robert J. Link, Esquire Howell Lyles and Milton 901 Blackstone Building

P.O. Box 420 Jacksonville, FL 32201

James T. Moore Commissioner

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

Jeffrey Long, Director Criminal Justice Standards Training Commission

P.O. Box 1489 Tallahassee, FL 32302

Docket for Case No: 89-001400

Orders for Case No: 89-001400