STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

) DEPARTMENT OF LAW ENFORCEMENT, ) DIVISION OF CRIMINAL JUSTICE ) STANDARDS AND TRAINING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1806

)

CARL SWIGER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on July 12, 1990, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Carl Swiger, pro se

515 South C Street

Lake Worth, Florida 33460 STATEMENT OF THE ISSUE

The issues framed by the Administrative Complaint, as amended, are whether while on duty as a police officer, Mr. Swiger unlawfully struck Ricky Spencer, and whether he detained Cheryl Ann Daggert, without lawful authority and against her will and as a consequence should be disciplined by the Criminal Justice Standards and Training Commission.

PRELIMINARY STATEMENT

The original Administrative Complaint was amended on May 15, 1990, to add an additional count.

During the hearing the following witnesses testified: Lorenzo Odum, Ricky James Spencer, Cheryl Ann Daggert, Jesus Nieves, Keith Newmark, Roy Strohacker, Stewart Winterson, Danny Lynch, Jeff Dean, Jeff Colbath, Curt Auwaerter, Barry Trombley, Richard Solomon and Carl Swiger. No documentary evidence was offered by either party. A transcript of the proceedings was filed on August 6, 1990. Upon application of Mr. Swiger, the time for him to file his proposed recommended order was extended, and it was filed on August 29, 1990.

FINDINGS OF FACT

1. Mr. Swiger was certified by the Commission as a law enforcement officer on March 29, 1982, and issued certificate number 44-82-002-02.

   
   

2. Mr. Swiger was employed as a patrol officer with the Police Department of the City of Lake Worth, Florida. On the evening of May 8, 1988, Officer Swiger and Officer Lorenzo Odum were patrolling the south end of City of Lake Worth as part of an overtime detail which had been established by Department management to deter prostitution and drug traffic in that area.

   
   

3. Officer Swiger and Officer Odum were in uniform, in a marked police car. Officer Swiger was driving. Officer Swiger saw Rickey Spencer walking on the east side of Dixie Highway; he slowed the police car, parked it in a driveway near Mr. Spencer and then exited the car while Officer Odum remained in the passenger seat. When Officer Swiger approached Mr. Spencer, Swiger asked Spencer what he was doing in Swiger's zone; Swiger had warned Spencer not to be in that area.

   
   

4. Officer Swiger strongly disliked Mr. Spencer, because Officer Swiger believed Mr. Spencer was a male prostitute. Whether true or not, Spencer has a reputation among Lake Worth police officers as one who dresses as a woman, engages men in oral sex and while their pants are around their ankles often lifts their wallets. Officers had been informed at meetings held at shift changes that city officials were unhappy about the prostitutes on Dixie Highway and wanted them off the street.

   
   

5. After receiving no adequate explanation from Mr. Spencer as to why Spencer was on Dixie Highway that evening, Officer Swiger forcefully punched Mr. Spencer in the abdomen with his fist, which caused Mr. Spencer pain and brief difficulty in breathing. 1/ After regaining his breath, Spencer asked Officer Swiger if he were under arrest. Swiger told Spencer that he did not want Spencer in the area. After hearing the sound of the blow, Officer Odum got out of the police car and looked where Officer Swiger and Mr. Spencer stood.

   Officer Odum told Swiger to "cut it out" because the use of physical force against Mr. Spencer was inappropriate.

   
   

6. At that point Mr. Spencer was told by Officer Swiger to "get out of here" and when Mr. Spencer turned to walk away Officer Swiger, who was wearing black combat boots, kicked Mr. Spencer in the buttocks with enough force to lift him off the ground.

   
   

7. Officer Swiger and Officer Odum then got back into their police car and drove on.

   
   

8. At no time during the encounter between Officer Swiger and Mr. Spencer did Mr. Spencer verbally or physically threaten any violence to Officer Swiger.

   
   

9. Officer Odum did not report the incident between Officer Swiger and Mr. Spencer to the Police Department, and Mr. Spencer did not report it to the police or file any complaint at that time.

   
   

10. Later, an unrelated incident occurred which caused the management of the Police Department to try to terminate Officer Swiger. Thereafter, Sergeant Ryan and Lieutenant Garson learned of the incident with Ricky Spencer and encouraged Mr. Spencer to bring the present complaint.

11. In May, 1988, Officer Swiger was involved in a department operation which attempted to make controlled buys of beer by minors in the Lake Worth area. As part of that operation, Officer Swiger observed an employee of a Cumberland Farms convenience store sell beer to a minor who was working with the police. The store clerk was Mr. Muhammad Sami Iqbal. The police took no action at that time, because they were engaging in similar attempts to buy beer at other locations. By experience the police knew that it would interfere with their operation if any clerks were served with a Notice to Appear in court to answer the charge of unauthorized sale of beer to minors. Clerks served would quickly put the word out about the operation to other store clerks by telephone.

    
    

12. Cheryl Ann Daggert was the manager for the Cumberland Farms Store where Mr. Iqbal worked. On the morning of May 18, 1988, at about 10:30 a.m., Officer Swiger and another officer came to the store and tried to determine when Mr. Iqbal would have his next shift, so that they could serve him with the Notice to Appear at that time. Ms. Daggert told Officer Swiger that Mr. Iqbal would next be at work at 7:00 p.m. that day. Although she did not have Mr. Iqbal's address, Ms. Daggert gave Officer Swiger Mr. Iqbal's home telephone number. Officer Swiger then left the store. Swiger was anxious to serve Mr. Iqbal because he had been off work for three days since the buy at Mr. Iqbal's store, and management at the department wanted to wrap up the operation by serving all the Notices to Appear as soon as possible.

    
    

13. Mr. Iqbal reported to work, but was immediately terminated by Ms. Daggert for having sold alcohol to a minor. She told Mr. Iqbal that the police would be looking for him. Shortly after the shift began Ms. Daggert's boyfriend, Jesus Nieves, took Mr. Iqbal to the police station so Mr. Iqbal could take care of whatever the police wanted to see him about. The police officer on duty at the station told Mr. Iqbal that Officer Swiger was not on duty and to return tomorrow.

    
    

14. At about 8:30 p.m. Office Swiger returned to the store. Ms. Daggert was still there and her boyfriend, Jesus Nieves, was also there to keep her company. There were five to seven customers either purchasing items in the store or there to pay for gasoline from the store's gasoline pumps. At that time Officer Swiger asked Ms. Daggert about Mr. Iqbal's address, and she again told Officer Swiger that she did not have it. Mr. Nieves told Officer Swiger that he had taken Mr. Iqbal to the police station earlier that day, and that Mr. Iqbal would go back to the police station the next morning. Officer Swiger then became angry and told Ms. Daggert that he was going to lock the store until he obtained the information that he wanted. Officer Swiger ordered the customers in the store to leave, including Mr. Nieves, then told Ms. Daggert that he would not permit her to accept payment from customers from items in the store or to activate the store's gasoline pumps until he obtained the information he wanted: Mr. Iqbal's address. As a result, some of the customers were unable to pay for items they had removed from the store shelves. Ms. Daggert also had to return a customer's $10.00 prepayment for gasoline because she had been forbidden by Officer Swiger to permit the customer to pump gasoline. In deference to Officer Swiger's directives the customers in the store, as well as Mr. Nieves, exited. Outside the store, Mr. Nieves told several customers that the store was closed and that they would have to wait.

    
    

15. After all the customers and Mr. Nieves had left, Officer Swiger locked the door from the inside and angrily told Ms. Daggert that the store would remain locked until she gave him Mr. Iqbal's address.

16. Ms. Daggert did not consent to being locked in the store and she was not free to leave the store. Officer Swiger told Ms. Daggert to call the Cumberland Farm's Office and to get him the information he wanted. Ms. Daggert told Officer Swiger that the office was closed at that time. Ms. Daggert telephoned her supervisor, Keith Newmark, at his home, to explain that a police officer had closed the store and that it would remain closed until he obtain Mr. Iqbal's address. Ms. Daggert gave the telephone to Officer Swiger who spoke to Mr. Newmark. Officer Swiger then repeated to Mr. Newmark that he needed Mr. Iqbal's address, and that the store would remain closed until Officer Swiger got the information he wanted. Mr. Newmark questioned Officer Swiger's authority to take that kind of action. Mr. Newmark did have some records at his home, in his company car. He retrieved them, and found he had Mr. Iqbal's address, which he gave to Officer Swiger.

    
    

17. About 20 to 30 minutes after the convenience store had been closed and locked, Officer Swiger unlocked the door and permitted Ms. Daggert to resume business.

    
    

18. Officer Swiger had received no formal training for conducting beer buy projects, but he had learned from other officers similar tactics to obtain information about persons who had sold beer to minors, when they needed to serve those persons with Notices to Appear. Other clerks and store managers are generally uncooperative in such matters.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

20. To be certified as a law enforcement officer, a candidate must have "good moral character" as determined by a background investigation under procedures established by the Criminal Justice Standards and Training Commission. Section 943.13(7), Florida Statutes. To remain a certified law enforcement officer, the licensee must maintain good moral character, for under Section 943.1395(5), Florida Statutes, the Commission "shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10) . . ." Rule 11B-27.0011(4)(a)-(c), Florida Administrative Code, defines good moral character in this way:

    
    

    1. For the purpose of the Commission's implementation of any of the penalties enumerated

       in Section 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), is defined as:

       
       

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or

          
          

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections . . . 784.03 [unlawfully striking another person against his will] . . . ;

       3. 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 crime.

          
          

21. There was no justification for the use of force by Officer Swiger in his encounter on May 8, 1988, with Ricky Spencer, either in punching him in the abdomen or kicking him in the buttocks. The evidence is insufficient to prove that Officer Swiger was acting under direction either from police management or from the City Manager's Office to engage in such conduct as a means of reducing drug trafficking or prostitution on Dixie Highway in Lake Worth. The fact that Officer Odum found Officer Swiger's conduct objectionable and told them to "cut it out" is inconsistent with an argument that what Officer Swiger was doing was following orders. Officer Swiger committed a battery on Ricky Spencer, in violation of Rule 11B-27.0011(4)(b), Florida Administrative Code.

    
    

22. Officer Swiger used his apparent authority as a police officer to eject patrons from the Cumberland Farms convenience store during its normal business hours and to lock its manager Cheryl Daggert inside the store. Ms. Daggert had not been placed under arrest nor was there any reason for Officer Swiger to have arrested her. She was not free to leave, and was therefore unlawfully detained against her will. The act of locking the door coupled with Officer Swiger's appearance in his police uniform, using his apparent police authority to confine Ms. Daggert, rendered her detention forcible under Section 787.02, Florida Statutes. This misconduct constitutes the violation of Rule 11B-27.0011(4)(a), Florida Statutes.

    
    

23. Officer Swiger's actions also raise substantial doubts about his respect for the law and the rights of others. These two occasions of improper conduct with respect to citizens in his jurisdiction are quite troubling. They reflect an attitude of contempt for the rights of ordinary citizens and a pattern abuse of the authority entrusted to police officers.

    
    

24. The disciplinary guidelines of the Commission are found in Rule 11B- 27.005, Florida Administrative Code. The guidelines themselves point out that:

    
    

    The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple counts of violations of Subsection 943.13(7), Florida Statutes, will be grounds for enhancement of penalties. All penalties at the upper range of the sanctions set forth in the guidelines (i.e., suspension or revocation), include lesser penalties (i.e., reprimand, remedial training or probation), which may be included in the final penalty at the Commission's

    discretion. Rule 11B-27.005(2), Florida Administrative Code.

25. The incident involving the misdemeanor battery of Ricky Spencer falls within Rule 11B-27.005(3)(b), where the guideline provides:

    
    

    For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses as described in Rule 11B-27.0

    . . . the action of the Commission shall be to impose a penalty ranging from probation to revocation.

    
    

26. The incident involving Ms. Daggert involves an act which constitutes a felony, and falls under Rule 11B-27.005(3)(a), which states:

    
    

    For the perpetration by the officer of an act which would constitute any felony offense, as described in Rule 11B-27.0011(4)(a) . . . the usual action of the Commission shall be to impose a penalty ranging from suspension to revocation.

    
    

27. Taken together, both acts raise substantial doubts about the officer's fairness or respect for the rights of others. In that situation Rule 11B- 27.005(3)(c), Florida Administrative Code, says that if the conduct "does not constitute a crime" the action of the Commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation. Because the acts involved here both constitute crimes, Rule 11B-27.005(3)(c) is inapplicable.

    
    

28. The range of penalties prescribed by the rule is extremely broad, from probation through revocation. It is useful, therefore, to look at the factors listed in (4)(a) through (q) of Rule 11B-27.005, which are the mitigating circumstances which the Commission considers in determining whether it should deviate from the penalty guidelines. They are equally useful in determining where, within the very broad range of penalties prescribed, the penalty ought to fall. These include:

    
    

    1. whether the officer used his official authority to facilitate the misconduct. Officer Swiger used his official authority both to stop Ricky Spencer and to detain Ms. Daggert.

    2. Does not apply.

    3. The officer's employment status at the time of the final hearing before the Commission. Officer Swiger is currently unemployed.

    4. The recommendations of character or employment references. No specific character or employment references were given, but the testimony of other police officers from the Lake Worth Police Department generally indicate a belief that Officer Swiger is a good officer.

    5. The number of violations found by the Commission. Officer Swiger is guilty of two violations.

    6. The number of prior disciplinary actions taken against the officer by the Commission. There is no evidence of prior Commission discipline against Officer Swiger.

    7. The severity of the misconduct. The misconduct is a significant abuse of authority resulting in unprovoked battery on Ricky Spencer, and less severe consequences to Ms. Daggert.

    8. The danger to the public. While Ricky Spencer was not seriously injured, the propensity of Officer Swiger to use physical violence in a situation which it is not called for is a type of danger to the public.

    9. The length of time since the violation. Both violations are relatively recent.

    10. The length of time the officer has been certified. Officer Swiger has been certified as a police officer for over 6 years at the time of the incidents in question.

    11. The actual damage, physical or otherwise, caused by the misconduct. Neither the injury to Ricky Spencer nor the detention of Ms. Daggert caused significant injury or damage.

    12. The deterrent effect of the penalty imposed. The significance of the misconduct here is such that a relatively light penalty, such as a reprimand, would have insufficient deterrent effect and would create a bad precedent in other cases.

    13. Any effort of rehabilitation by the officer. There is no indication of any attempted rehabilitation by Officer Swiger. In general, he appeared to view the Spencer incident as nothing more than a misjudgment in giving Mr. Spencer a boot in the rear. More than that occurred. He has not admitted that he also punched Mr. Spencer, and the lack of remorse about the battery indicates that Officer Swiger is not likely to be rehabilitated. There is substantial reason to fear further physical violence from Officer Swiger directed to persons who he disdains.

    14. The effective penalty upon the officer's livelihood. A penalty involving some sort of suspension or perhaps revocation would have a significant affect upon the officer's livelihood. In view of the nature of the misconduct, however, a penalty involving suspension or revocation is appropriate.

    15. Penalties imposed for other misconduct. There are no other cases of misconduct by Mr. Swiger which have been adjudicated by the Commission, so this factor has no bearing in this case.

    16. This factor does not apply.

    17. This factor does not apply.

    
    

29. On balance, some serious penalty is appropriate. A reprimand or career development training would be insufficient. Suspension of certification for two years or revocation would be appropriate. As between these two, lengthy suspension is probably functionally equivalent to revocation. The penalty guidelines reflect an intention to impose a more severe penalty when the licensee is guilty of multiple violations. The appropriate penalty then is the revocation that the Commission has argued for.

RECOMMENDATION

As a consequence, under Rule 11B-27.005(5)(d), it is recommended that the certification of Mr. Swiger be revoked.

DONE and ENTERED this 1st day of October, 1990, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 1st day of October, 1990.

ENDNOTES

1/ Officer Swiger's statement that he only "poked him [Spencer] in the chest" (Tr. 150) is rejected, based upon the testimony of Mr. Spencer, the testimony of Officer Odum about the incident (which Officer Odum clearly was uncomfortable in giving against a fellow officer) and the testimony of Officer Swiger that he commonly would stop his police car to yell at Spencer, harass him, and that he did kick Spencer (Id.).

APPENDIX TO RECOMMENDED ORDER

Rulings on findings proposed by the Department:

Mr. Swiger has stipulated to the Commission's proposed findings 1, 3, 5-7, 9, 12, 17, 18, 21, 24, 26-29, 32-37, 39, 42-46 and 48, which have been adopted. With respect to the remaining proposed findings by the Commission the following rulings are made:

38. Adopted in Findings 11 and 12.

1. Rejected as unnecessary.

2. Adopted in Finding 13.

47. Adopted in Finding 14.

Rulings on findings proposed by Officer Swiger:

2. Adopted as modified in Finding 2.

4. Adopted in Finding 3.

8. Rejected. See, Finding 4.

10. Rejected. See, Finding 5.

1. Rejected. See, Finding 5 and Footnote 1.

2. Rejected. See, Finding 5.

3. Generally adopted in Finding 6, although the quote is somewhat different.

4. Rejected. See, Finding 6.

1. Adopted in Finding 12.

2. Rejected. See, Finding 12.

22. Rejected. See, Finding 12.

25. Rejected, the evidence is not persuasive that this was the Officer's fourth visit to the store for the purpose of serving the Notice to Appear, although it may be the fourth time that he was at the store.

30. Rejected. See, Finding 13.

31 and 38. Rejected. See, Finding 12.

1. Accepted, no finding has been made that Ms.

   Daggert attempted to call Mr. Iqbal

   while Officer Swiger was there at 7:00 p.m.

2. Rejected. See, Finding 13.

Rulings on supplementary findings proposed by Officer Swiger:

1 and 2. Subordinate to Finding 2.

1. See, Finding 4.

2. Rejected because whatever Mr. Spencer's general propensity to lie may be, his testimony as corroborated by Officer Odum has been accepted.

3. Rejected. See, Finding 3.

4. Adopted in Finding 9.

5. Adopted in Finding 9.

6. Rejected as unnecessary, but implicit in Finding 10.

7. Generally adopted in Finding 10.

8. Adopted in Finding 15.

9. Rejected as irrelevant. The absence of previous complaints or sanctions does not control whether the action of Officer Swiger was appropriate.

10. Rejected. Officer Swiger prohibited Ms. Daggert from leaving. (Tr. 154 lines 22-24)

11. Rejected. See, Finding 14.

12. Rejected as unnecessary.

Copies furnished:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Carl Swiger

515 South C Street

Lake Worth, Florida 33460

Jeffrey Long, Director Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforceme

Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 90-001806

Orders for Case No: 90-001806