STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS )
AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) Case No. 91-4067
)
WILLIE A. BROWN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 22 and 23, 1991, in Lakeland, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Gina Cassidy, Esquire
Assistant General Counsel Florida Department of Law Enforcement
Post Office Box 1489 Tallahassee, Florida
For Respondent: C. Kenneth Stuart, Jr., Esq
1525 South Florida Avenue Lakeland, Florida
STATEMENT OF THE ISSUES
Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
PRELIMINARY STATEMENT
Petitioner filed an Administrative Complaint against Respondent on April 1, 1991, charging that Respondent did unlawfully sell, deliver or possess with intent to sell or deliver, a controlled substance (cocaine) on two occasions.
Respondent denied the allegations, and demanded a formal hearing by filing an Election of Rights on April 10, 1991. This matter was referred to the Division for hearing on June 27, 1991.
Following discovery the formal hearing was held. At the hearing, the Petitioner presented the testimony of six witnesses, and seven exhibits were admitted in evidence. Respondent presented the testimony of three witnesses,
and testified himself. No exhibits were admitted in evidence on behalf of Respondent.
Both parties agreed to file their proposed recommended orders within 15 days of the filing of the transcript. The transcript of the proceedings was filed with the Clerk of the Division on November 14, 1991. Petitioner filed its proposals on November 27, 1991. Respondent filed his proposed findings on December 2, 1991. The proposed findings have been given careful consideration, and have been incorporated where appropriate. Specific rulings on proposed findings are addressed in the Appendix attached to this order.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
The Respondent, Willie A. Brown, was issued certificate number 43-83- 002-01, and certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on April 1, 1983.
The Respondent was also issued certificate number 43-78-500-00, and certified as a correctional officer on July 1, 1981.
At all times material to this case, the Respondent was employed as a police officer by the Lakeland Police Department.
Respondent was assigned as a detective to the Special Investigations Unit (SIU) (now SID) of the Lakeland Police Department in 1987.
Respondent's duties as a detective with the Lakeland Police Department- SIU were primarily the investigation, apprehension, and arrest of those individuals involved in the sale, delivery, and possession of illegal narcotics.
The main goal of the Lakeland Police Department-SIU was to curb vice and illegal narcotics, and get them off the street.
When Respondent began with the unit, there were five or six detectives. By 1989, the unit had grown to 18 detectives, two sergeants, and a lieutenant.
The growth of the unit was due to the increase in illegal drug trade in Lakeland, especially of crack cocaine, which had reached almost epidemic proportions by 1989.
Hand-in-hand with the increased drug trade was an increase in street- level violence, including drug related shootings, in certain areas of the city.
As part of his duties, Respondent participated in "buy-busts" or sting operations and reverse sting or "reverse" operations.
A sting or "buy-bust" requires an undercover officer or confidential informant (CI) under an officer's supervision to purchase illegal narcotics with previously recorded "buy" money issued by the Lakeland Police Department.
Once the "buy" was completed, the purchased drugs would be field tested by the officer, placed into an evidence bag and marked, impounded into evidence, and then sent to a lab for analysis.
The entire chain-of-custody would be documented from the time the officer obtained the drugs, to the time they were returned from the lab.
The seller would either be arrested immediately after the sale, or a warrant for his/her arrest obtained within a short time.
Whenever possible, the buy would be recorded by audio or videotape. In July of 1989, LPD had ample recording equipment available to its officers for such purposes.
A reverse sting is the opposite situation where an undercover officer or CI under supervision sells drugs to another individual.
Prior to conducting a reverse sting, the officer would obtain a known quantity of a previously tested substance (marijuana or cocaine) from a supervisor at the police department.
The above was done for evidentiary purposes so that it could be proven in court that the substance sold to the targeted individual was, in fact, cocaine or marijuana.
Once the drugs were sold to an individual, he/she was immediately arrested to avoid putting the drugs back on the street, or letting the drugs "walk."
The drugs sold to the subject would be recovered, and sent to the lab to be re-tested.
With one exception, authorized by the State Attorney's Office involving a very small amount of marijuana, drugs were not allowed to "walk" after a reverse.
If a situation were to arise where drugs were to be "walked," prior approval would have to be obtained from the State Attorney's Office.
Whenever possible, reverse sting transactions were to be audio or video recorded.
Additional law enforcement assistance or backup was always required on a reverse sting operation for safety and evidentiary purposes.
Before a reverse sting was conducted, prior approval or authorization from one of the SIU supervisors, was required.
Once a reverse sting was completed, the money obtained from the purchaser was always required to be logged and impounded into evidence to preserve the chain of custody for evidentiary purposes.
All stings and reverse stings were to be documented in reports.
In July and August of 1989, the Respondent was thoroughly familiar with the procedures and proper methods for conducting stings and reverse sting operations.
He had conducted or been involved in scores of such operations and, prior to the incidents giving rise to the instant case, had followed accepted procedures.
It was a common occurrence that SIU detectives would locate and confiscate abandoned or discarded illegal drugs without making an arrest.
Sergeant Tom Brown testified that although initially all "found contraband" had to be turned in and reported for each separate instance, he changed this policy due to the volume being recovered by 1989, and allowed his detectives to turn it in by the end of their shift to a superior to be placed in a safe, documented on one report, and disposed of later.
Respondent was well aware of the policy for turning in found contraband, and prior to the incidents in the case at bar, followed said procedure.
Although at one time, PDD detectives were allowed to resell found contraband in "quickie-reverse stings," this practice had been abandoned by 1989 due to problems with chain-of-custody and later proving in court the nature of the items sold.
SIU investigators were also responsible for collecting intelligence information on individuals involved in criminal activity.
In July of 1989, there were two individuals, Bill Lepere and Lynn Adams, responsible for maintaining intelligence reports or files.
In addition, the members of SIU shared information at weekly meetings.
In July/August 1989, after-hours work, such as arrests, had to be approved by a supervisor.
In July/August 1989, if a SIU detective was investigating an active CI, either one working with Lakeland Police Department or another law enforcement agency, it was necessary to notify another member of SIU to avoid compromising an active investigation.
In July/August 1989, if a SIU detective was conducting an investigation into alleged criminal activity of another police officer or law enforcement agent, it required notification and approval of a supervisor.
By 1989, Respondent was a senior detective in DIU, who routinely followed policies and procedures, and even helped develop a SIU policy manual.
In July and August 1989, it was standard operating procedure for investigations by SIU detectives and all Lakeland police officers to be conducted only after notifying and obtaining permission from a supervisor.
In July and August 1989, all SIU detectives and all Lakeland police officers were to document their activities regarding investigations in reports in a timely manner.
In July and August of 1989, all SIU detectives and all Lakeland police officers were to handle evidence collected in the course of their duties in accordance with departmental procedures.
In July and August of 1989, all SIU detectives and all Lakeland police officers were prohibited from using evidence for their own personal use or from concealing it, destroying or tampering with, or withholding it in any way.
In July and August of 1989, Respondent had a good working and trusting personal relationship with his supervisor, Sergeant Tom Brown.
In July and August of 1989, Respondent also had a good working and trusting personal relationship with his partner, Vic White, and all members of the SIU.
Respondent and his partner were considered two of the most self- motivated and aggressive officers in the unit, and Respondent had received citations and commendations for his work.
In late 1988, Reggie Burns, a Special Agent (SA) with the Federal Bureau of Investigations (FBI) made contact with an individual by the name of Gloria Taylor.
At the time, SA Burns, an agent since 1985, was assigned to the narcotics squad out of the Miami FBI Office.
SA Burns met with Gloria Taylor in the Richland County Jail in Columbia, South Carolina, with the purpose of seeking her cooperation with them regarding some of her associates that were involved in criminal activity.
Taylor became a paid FBI informant for SA Burns in exchange for Burns securing her release from jail.
The FBI was aware of Gloria Taylor's criminal history, which made her more attractive as an informant due to her contacts.
As with all confidential informants utilized by Burns and the FBI, Taylor was specifically instructed not to engage in criminal activity except at the direction of Burns.
Taylor was instructed that whenever she was associating with those who dealt in narcotics, Burns was to be notified.
It was not known whether Taylor abided by the above instructions prior to her dealings with Respondent.
By their nature, CIs are hard to keep track of since their movements are not restricted. They are often in the streets, at large, and the agent may have to initiate contact with them.
Taylor generally maintained contact with SA Burns from the time she began working with him until August of 1989.
Prior to July of 1989, Burns became aware that Gloria Taylor was travelling to Tampa and Lakeland regularly, and possibly living in Lakeland.
Due to the above, Burns contacted the FBI SA in Lakeland, "Doc" Gardner, as well as Sergeant Lynn Adams, Sergeant William Lepere, Sergeant Tom Brown, and Detective Ronnie Clayton, and possibly even Respondent of the Lakeland Police Department, and requested that they monitor Taylor's activities, and those of other individuals he was investigating at the time.
SA Burns did not know Respondent prior to July 1989, and had not heard anything about him.
Gloria Taylor first met Willie Brown in 1987.
Although she had been stopped by him several times, he had never arrested her, and she had no disagreements with him.
At all times in her contacts with Respondent, Taylor was aware that Respondent was a Lakeland Police Officer.
In July/August of 1989, Gloria Taylor was a well-known criminal figure in the Lakeland area with a reputation for being involved in drug dealing, along with members of her family, T. Y. Brown and Gary Brown, who were known as the "Miami Boys."
Gloria Taylor was thought by members of the Lakeland Police Department-SIU to be responsible for putting large amounts of illegal drugs out on the streets of Lakeland.
In that time period, Gloria Taylor had a reputation for being a dangerous individual.
Respondent, along with other members of the Lakeland Police Department, were involved in the arrest of Taylor's brother, T. Y. Taylor.
T. Y. Taylor was convicted and sentenced to life imprisonment for that offense.
Taylor was upset with the Lakeland Police Department, and Respondent personally, due to her brother's arrest and conviction.
There were rumors that Gloria Taylor and her family had a "contract" out for the murder of Respondent, his partner Vic White, and Sergeant Tom Brown in retaliation for T. Y. Brown's arrest and conviction.
In addition, there was a great deal of violence associated with drug dealers in general during that time period.
Despite repeated attempts to make good cases on Gloria Taylor, she seemed to always escape prosecution or lengthy jail sentences.
This was a source of frustration for Respondent and other SIU members.
Prior to July of 1989, it became well-known in the SIU that Gloria Taylor was working with the FBI as an informant, and Respondent was aware of this fact.
It was believed among members of LPD-SIU and Respondent that Taylor continued to engage in illegal drugs activities despite being an FBI-CI.
During this same period of time, there was a feeling of mistrust by the LPD-DIU, not only of the FBI in general, but of SA Burns in particular.
Lakeland resident, SA "Doc" Gardner, was the source of some of this distrust as he related that SA Burns appeared to be deviating from FBI policies.
However, Gardner confirmed that SA Burns was authorized to come to the Lakeland area, and was conducting a legitimate investigation.
This was related to the SIU and Respondent specifically prior to July 1989.
Gardner made it known to the SIU and Respondent in particular that he was working with SA Burns.
Gloria Taylor was a regular topic of conversation at SIU meetings prior to July 28, 1989.
Prior to July 28, 1989, Respondent made only one mention at the SIU meeting that he was working on something regarding Gloria Taylor.
Everyone else in the unit was working on something related to Gloria Taylor also.
In July/August 1989, Respondent could have readily obtained assistance for an investigation into Gloria Taylor from Sergeant Tom Brown, his partner Vic White, or others in SIU.
Respondent should have gotten authorization for such an investigation from Sergeant Brown.
If Respondent had wanted to initiate an investigation of an FBI-CI like Gloria Taylor, it would have been considered a major case in July 1989.
Such an investigation would require backup, prior authorization from a superior, and would have to be documented by reports.
Prior to July 1989, Respondent had not conducted a major investigation without the knowledge, approval, and authorization of his superiors.
Respondent never sought or received authorization from Sergeant Brown or anyone at the Lakeland Police Department to sell drugs to Gloria Taylor.
Sometime in 1989, Respondent approached Gloria Taylor at a Lakeland residence, and took her for a ride in his Lakeland Police Department's unmarked vehicle. While they were in Respondent's vehicle, Respondent showed her a quantity of crack cocaine packaged in small-sized baggies inside a larger baggie.
Respondent stated he had confiscated the cocaine during a drug bust.
Respondent indicated to Taylor he wanted to "get rid of" the cocaine, and asked $700 for it.
Ms. Taylor gave him $650, and agreed to pay him the remaining $50 later.
Respondent later threatened to arrest Gloria Taylor if she didn't pay him the remaining $50, which she eventually did.
Gloria Taylor later sold the $700 worth of cocaine to other individuals.
Gloria Taylor, at first did not tell SA Reggie Burns of her drug purchase from Respondent, but did tell him later when confronted by SA Burns.
At that meeting, Burns instructed Taylor not to meet with Respondent again until a controlled buy could be set up.
SA Burns received permission from his Assistant Special Agent in Charge to conduct a monitored buy from Respondent to Gloria Taylor.
The transaction was arranged for July 28, 1989, at McDonald's on Ariana and Central Avenue in Lakeland.
Agent Burns, assisted by SA Pat Johnson, supplied Taylor with a recording device, which she hid in her bra, and prerecorded buy money.
At this July 28, 1989, meeting, Respondent arrived in his Lakeland Police Department vehicle.
Respondent did not pat Gloria Taylor down for weapons.
Gloria Taylor met with Respondent, purchased approximately 10 pieces of crack cocaine from Respondent, and paid him $100 for the crack cocaine.
Respondent indicated that the cocaine he sold Taylor was confiscated during a drug bust.
During her discussion with Respondent on July 28, 1989, Taylor and Respondent discussed him giving her brother Gary Cocaine.
Respondent indicated he could carry as much cocaine as he wanted while he was on duty, but if he was off duty, he might have to come up with an excuse.
Respondent asked Taylor to keep him apprised of Reggie Burns' and the FBI's activities. Taylor did not acknowledge her relationship with Burns.
Respondent cautioned Taylor not to tell anyone about their dealings.
After the transaction with Respondent was completed, Taylor turned over the cocaine and tape-recording to SA Burns.
SA Burns submitted the cocaine to the Drug Enforcement Administration (DEA) lab for analysis. The results were that it was, in fact, cocaine.
At no time on July 28, 1989, or thereafter did Respondent attempt to arrest Taylor, or retrieve the cocaine he sold her.
After the July 28, 1989 transaction, SA Burns notified the Tampa FBI Office of his investigation of Respondent.
The Lakeland Police Department was also notified of the investigation.
At no time after the Lakeland Police Department were notified did anyone come forward and inform SA Burns, or anyone at the FBI, that Respondent was conducting an authorized investigation of Gloria Taylor.
SA Burns then had Taylor set up a second meeting with Respondent.
The meeting took place at the same location as the July 28, 1989 meeting, at 12:15 a.m., on August 17, 1989.
Gloria Taylor was given $600 in previously recorded and photocopied FBI "buy" money.
Prior to the meeting, Gloria Taylor was searched, her vehicle was searched, and the other cooperating witness, Catherine Smith was searched, all with negative results; that is, no money or contraband were discovered.
Gloria Taylor was again equipped with a recording device.
Respondent arrived in the same unmarked vehicle, and Gloria Taylor entered his car while SA Burns and Johnson surveilled her.
Respondent, again, did not pat Taylor down to see if she had any weapons.
During the second monitored meeting between Respondent and Taylor, Respondent sold her 32 rocks of cocaine, and Taylor paid for it with $350 of the FBI buy money.
Respondent told Gloria Taylor she could cut the rocks up, sell them, and double her money.
Immediately following the transaction, Taylor met with SA Burns, and turned over the crack cocaine, tape recorder and tape, and excess money.
SA Burns turned the 32 cocaine rocks in to the DEA lab for testing.
The rocks tested positive for cocaine.
At no time on August 17, 1989, did Respondent attempt to arrest Gloria Taylor, or retrieve the cocaine.
Respondent never told Sergeant Brown about the sales on July 28 and August 17, 1989, after they were completed.
Respondent never got authorization to let Gloria Taylor "walk" with the drugs sold to her on July 28 or August 17, 1989.
Respondent never requested backup for his meetings with Gloria Taylor on July 28 or August 17, 1989.
Respondent never received authorization to work overtime on drug investigation on July 28 or August 17, 1989.
Respondent never filled out any intelligence reports on his anticipated or actual sales to Gloria Taylor.
Respondent never had pretested drugs issued to him by a supervisor prior to his July and August 17, 1989, sales to Gloria Taylor.
Respondent never placed into an evidence bag, marked, impounded, or turned in the money to the Lakeland Police Department from the July 28 or August 17, 1989, drug sales to Gloria Taylor.
To date, no one, even Respondent's partner Vic White, has come forward to state Respondent told them of his drug sales to Gloria Taylor before- the-fact.
Sergeant Brown never approved warrants against Gloria Taylor for either sale.
Gloria Taylor received immunity and $4,000 from the FBI for her participation in Respondent's case.
In February of 1991, Gloria Taylor was arrested by the Lakeland Police Department for trafficking in cocaine.
In March of 1991, Taylor was sentenced to life in prison as a habitual felony offender.
The FBI did not assist Taylor in any way in that case.
Gloria Taylor was not paid anything or compensated in any way for her testimony at the hearing in the instant case.
After the second sale of drugs from Respondent to Gloria Taylor, Respondent was arrested by members of the Tampa FBI Office and the Lakeland Police Department.
The $350 FBI buy money was recovered from Respondent's person after his arrest.
At no time during Respondent's conversations with Gloria Taylor did he ask her to become a confidential informant for the Lakeland Police Department.
After Respondent's arrest, Sergeant Lynn Adams, assisted by then-FBI Agent "Doc" Gardner, conducted a thorough search of Respondent's vehicle and office.
Prior to the search, Respondent's vehicle had been in FBI custody.
There was no U.S. currency found in Respondent's vehicle.
There were no intelligence reports, found in Respondent's vehicle.
Notebooks found in the vehicle were secured, boxed, and placed in Lieutenant Roddenberry's office for safekeeping.
Located in Respondent's car was a zip-lock bag with a small cocaine rock and a sip-lock bag with white powder, both field-testing positive for cocaine.
The five $20 bills of FBI buy money from Respondent's first sale of cocaine to Gloria Taylor were not located by Adams or Gardner in the search of the vehicle.
Adams and Gardner thoroughly searched Respondent's office, which had been padlocked since his arrest.
Notebooks found in the Respondent's desk were placed into a box for safekeeping in Lieutenant Roddenberry's Office.
The only U.S. currency located in Respondent's desk was a $1 bill altered to look like a $20 bill.
The five $20 bills that were FBI buy money from the July 28, 1989, transaction were not located anywhere in Respondent's desk or office.
There were no reports located in Respondent's desk or office.
There were no notes or notations referencing Gloria Taylor found in Respondent's car, desk, office, or notebooks, although Adams and Gardner specifically looked for such notes.
The search of the car and office took approximately three and a half to four hours.
Respondent was indicted by a federal grand jury for two counts of distribution of cocaine within one thousand feet of a school, and one count of carrying a firearm while engaged in a drug trafficking crime.
Respondent was acquitted of the charges after a jury trial in May 1990.
Several members of the Lakeland Police Department believed Respondent was conducting his own "sting" operation at the time of his arrest, and would work with him again as a law enforcement officer.
After his arrest, Respondent continued to testify on cases where he had been the arresting officer.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout the state, pursuant to Sections 943.085-943.255, Florida Statutes (1989), and to discipline those licensed thereunder who violate the law.
The Petitioner has the burden to prove, by clear and convincing evidence, the violation Section 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 943.13(4), Florida Statutes, established the minimum qualifications for law enforcement officers in Florida, including at subsection (7):
Have a good moral character as determined by a background investigation under procedures established by the Commission.
Section 943.1395(5) provides:
The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10). . .
Section 943.1395(6)(1989), Florida Statutes, establishes certain lesser penalties for violations in appropriate cases.
In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), an applicant for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to this conclusion are entirely dissimilar to the instant case, the court's definition of moral character is significant.
Moral character as used in this statute, means not only the ability to distinguish between 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.
Such definition applies in the case before this tribunal. In Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of "good moral character," in a case involving admission to the bar,
requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.
See also, White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970).
Rule 11B-27.011(4)(b), 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:
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:
The perpetration by the officer of an act which would constitute any felony
offense, whether criminally prosecuted or not, or
The perpetration by the Officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not,
or
The perpetration by the office 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.
Section 893.13(1)(a) 1., Florida Statutes, makes the unlawful sale of cocaine a second degree felony.
In the case at bar, clear and convincing evidence established that on at least two occasions, July 28, 1989 and August 17, 1989, Respondent unlawfully sold cocaine while not acting under the authority of the Lakeland Police Department, as alleged in the Administrative Complaint.
Respondent violated Rule 11B-27.0011(4)(a), Florida Administrative Code, by committing acts which constitute felony offenses, to wit, the unlawful sale of cocaine. This is true, notwithstanding the Respondent's acquittal on related criminal charges. Taube v. Florida Keys Aqueduct Authority, 516 So.2d
90 (Fla. 3rd DCA 1987); Florida Board of Bar Examiners, Re: D.M.J., 16 FLW S636 (Fla. September 26, 1991).
Using one's position as a police officer to participate in illegal drug activity gives rise to substantial doubts about an officer's honesty, fairness and respect for the law. Criminal Justice Standards and Training Commission v. Lyons, DOAH Case No. 90-7186.
Clear and convincing evidence established Respondent used his position as a Lakeland Police Department-Special Investigations Unit detective to obtain cocaine, make contacts among drug dealers in the community, and sell that cocaine while in his unmarked Lakeland Police Department vehicle, under the guise of a legitimate investigation.
Therefore, there is competent substantial evidence to support the conclusion that Respondent violated Rule 11B-27.0011(4)(c), Florida Administrative Code.
Clear and convincing evidence established that the Respondent committed misconduct which, under applicable case law and administrative rules, established his lack of good moral character. The position of officer is one of great public trust. There can be no more basic public expectation than that those who enforce the laws must themselves obey those same laws, City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1989).
Respondent's conduct of possessing and selling cocaine constitutes very serious misconduct establishing a lack of good moral character. The type and scope of the misconduct is much greater than mere violation of departmental policies, as argued by Respondent.
In the case before this tribunal, Respondent admitted he was not authorized by anyone to sell cocaine to Gloria Taylor. His explanation for his
conduct is not credible. Even assuming Respondent was acting for the stated purpose of a drug investigation, Respondent knew, or should have known, that any evidence he collected would not hold up in a court of law. Whether, in fact, the department had "vague" or "lax" policies for detectives working in the SIU, there is a line that no police officer can cross, and still remain a "law enforcement officer" worthy of the name. If they cross that line, they become no different from those "law breakers" who they are attempting to arrest.
Respondent crossed the line, and is no longer entitled to be certified as a law enforcement officer.
Respondent had good evaluations of his police work up to the time of these incidents, and maintains a good reputation in the community and among his coworkers and former supervisors. Although Respondent had helped send many drug dealers, including Gloria Taylor's brother, to prison during his career, Respondent's very serious misconduct militates against mitigation. The seriousness of the Respondent's misconduct merits revocation of his law enforcement officer certification.
Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED.
RECOMMENDED this 19th day of December, 1991, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
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 19th day of December, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4067
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's findings of fact Accepted in substance: paragraphs -
1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30
,31,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54(inpart)
,55,56,57(inpart),58,59,60,61,62,63,64,65,66,67,68,69,70,71,72,73,74,75,76,77,78
,79,80,81,82,83,84,85,86,87,88,89,90,91,92,93,94,95,98,101,102,103,104,105,106,1
07,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,1
27,128,129,130,131,132,133,135,136,137,138,139,140,143(inpart),144,145,146,147,1
48,149,150,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,1
70
Rejected as insufficient evidence or as against the greater weight of evidence: paragraphs -
96,97,99,100,134,141,142,143(in part),151,152
Respondent's findings of fact
Respondent's proposed findings of fact were submitted in an unnumbered format. For identification purposes, I have assigned a page and paragraph number to each full paragraph as they appear in Respondent's proposed recommended order)
Accepted in substance: page 1, para. 1, para. 2 (in part); page 2, para. 2 (in part), para. 3 (in part); page 3, para. 2 (in part); page 4, para. 1 (in part), para. 2 (in part), para. 3 (in part); page 5, para. 2, para. 3 (in part), para.
4 (in part); page 7, para. 1 (in part), para. 2 (in part); page 8, para. 1 (in part), para. 2 (in part)
Rejected as not supported by credible evidence: page 2, para. 3 (in part); page 4, para. 1; page 5, para. 3; page 5, para. 4; page 6, para. 1, para. 2
Rejected as irrelevant or subsumed: page 1, para. 2; page 2, para. 1, para. 2
(in part); page 3, para. 1, para. 2; page 4, para. 2, para. 3; page 5, para. 1,
page 7, para. 1, para. 2; page 8, para. 1, para. 2
COPIES FURNISHED:
Gina Cassidy, Esquire Assistant General Counsel Department of Law Enforcement
P.O. Box 1489 Tallahassee, FL 32302
C. Kenneth Stuart, Jr.
P.O. Box 2177
Lakeland, FL 33806-2177
Jeffrey Long, Director Criminal Justice Standards and Training Commission
P. O. Box 1489 Tallahassee, FL 32302
James T. Moore Commissioner
Department of Law Enforcement
P.O. Box 1489 Tallahassee, FL 32302
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Mar. 02, 1993 | Final Order filed. |
| Dec. 19, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 10/22-23/91. |
| Dec. 02, 1991 | Findings of Fact; Argument filed. (From C. Kenneth Stuart, Jr.) |
| Nov. 27, 1991 | Petitioner`s Proposed Findings of Fact and Conclusions of Law filed. |
| Nov. 14, 1991 | Transcript (Volumes 1-3) filed. |
| Oct. 22, 1991 | Final Hearing Held Oct. 22-23, 1991; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file. |
| Sep. 27, 1991 | Order (Respondents Motion for Continuance DENIED) sent out. |
| Sep. 23, 1991 | Petitioner`s Motion in Opposition to Respondent`s Motion to Continue filed. (From Gina Cassidy) |
| Sep. 18, 1991 | (Respondent) Motion to Continue filed. (From C. Kenneth Stuart, Jr.) |
| Jul. 29, 1991 | Notice of Hearing sent out. (hearing set for Oct. 22-23, 1991; 10:00am; Lakeland). |
| Jul. 19, 1991 | Ltr. to DMK from James Moore re: Reply to Initial Order filed. |
| Jul. 15, 1991 | Ltr. to DMK from C. Kenneth Stuart, Jr.) re: Reply to Initial Order filed. |
| Jul. 09, 1991 | Initial Order issued. |
| Jun. 28, 1991 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 02, 1992 | Agency Final Order | |
| Dec. 19, 1991 | Recommended Order | Police officer's sale of cocaine as part of unauthorized sting operation constitutes misconduct and establishes lack of good moral conduct. |
