STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6390

)

WILLIE J. MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on June 25, 1994 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul D. Johnston, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Joan Stewart, Esquire

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF ISSUES

Did the Respondent commit any of the following alleged acts contrary to law, and, thereby, fail to maintain the good moral character required of a certified police officer:

1. Using of attempting to use official position, property, or resource in his trust to secure special benefit;

   
   

2. Requesting, soliciting, or accepting a pecuniary or other benefit not authorized by law for past, present or future performance; or violation of any act or omission the public servant represents as having been either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty;

   
   

3. Unlawfully, willingly, and knowingly, without authorization, accessing a computer and thus committing any offense against computer users; and

4. Unlawfully and knowingly making a false statement concerning material matter to members of the Tallahassee Police Department during an internal investigation with the intent to mislead said members in regards to his unauthorized access of criminal history information and his attempt to barter same for sexual favors.

   
   

   PRELIMINARY STATEMENT

   
   

   On June 25, 1993, the Criminal Justice Standards and Training Commission (Commission) filed an Administrative Complaint against the Respondent, Willie J. Mitchell, charging him with violating Section 943.1395(6),(7), Florida Statutes, and Rule 11B-27.0011(4)(a), (b), or (c), Florida Administrative Code by failing to maintain qualifications, to wit, good moral character.

   
   

   The Respondent, Mitchell, filled an Election of Rights disputing all allegations in the Administrative Complaint and requesting a formal hearing pursuant to Section 120.57, Florida Statutes, on July 14, 1993. On November 2, 1993, the Commission referred the case to the Division of Administrative Hearings. The case was set for February 8, 1994, and eight hours of testimony taken in the matter on that date. The parties were instructed to advise the hearing officer of their availability for continuing the hearing, and the case was reset for July 13 and 14, 1994, and heard as noticed.

   
   

   At the hearing the testimony of Officer Eddie Forsberg, and Ms. Michelle Worley was presented by Petitioner. The Respondent called former Deputy Chief Scott, Sgt. Joan Parsons, Raymond Allen Henry, Terry Howard, Colleen Ann Barber, David Bellamy, and Gregory C. Adams to testify. Several issues arose regarding the admissibility of evidence relating to conversations between Ms. Worley and the Respondent which were intercepted by Officer Forsberg. In the absence of these tapes, the only issue is the credibility of the only witness against the Respondent, Ms. Worley. Her credibility must be assessed in terms of per past conduct, reputation, situation at the time of the alleged incident which is the basis for the charges, and her situation at the time of hearing.

   
   

   The hearing officer reserved ruling on the admissibility of Petitioner Exhibit 6 pending receipt of the transcript, and after the transcript was filed August 19, 1994, a ruling was delayed due to the hearing officer's oversight.

   After inquiry by counsel, the exhibit was admitted by order dated October 4, 1994. 1/ This closed the record; however, counsel requested and were granted an short extension to file their briefs which were filed November 3, 1994.

   
   

   The briefs of the parties were read and considered. The Appendix to this order states which of their proposed findings were adopted and which were rejected and why.

   
   

   FINDINGS OF FACT

   
   

   1. Willie J. Mitchell was certified as a law enforcement officer by the Criminal Justice Training and Standards Commission on April 20, 1988, and holds certificate number 16-88-002-01. The Respondent, Mitchell, was certified at all times relevant to the Administrative Complaint in this case.

      
      

   2. Mitchell was employed by the City of Tallahassee Police Department as a patrol officer for approximately three years, and then assigned as an investigator to the Criminal Investigations Division (CID), where he worked until his discharge.

   3. Pursuant to his duties in CID, Mitchell was authorized to access the National Criminal Information Center (NCIC) and Florida Criminal Information Center (FCIC) via computer terminals. The policies of the Tallahassee Police Department limited inquiries to the subjects of official investigations of the Tallahassee Police Department.

      
      

   4. Investigative activities by officers of the Tallahassee Police Department were limited to official cases opened by the department according to its policies.

      
      

   5. Until this incident, the Respondent had a good reputation in the department for the quality of his work, his attitude, and his integrity.

      
      

   6. Michelle Worley, born in January 16, 1972, was an explorer scout with the Tallahassee Police Department in 1991 and 1992. Police explorer scouts are issued uniforms, go through an academy for police training, and perform various duties to include radio dispatch and riding with sworn officers on duty.

      
      

   7. Ms. Worley was a police "groupie", and was rumored to have had sexual relations with several officers in the Tallahassee police department and sheriff's department prior to coming to the police department. Because of these rumors, she was counseled by the explorer leaders to limit her activities and relationships with officers to strictly an official basis or to leave the explorer program. She left the explorer program in October 1992 because she was pregnant.

      
      

   8. Ms. Worley, while in the explorer program, asked to be assigned to work with the Respondent. She frequently called the Respondent when she was not at the police station, and it was rumored that the Respondent and Worley had a personal relationship. She gave the Respondent a pinup type photograph of herself semi-nude.

      
      

   9. In November 1992, Ms. Worley commenced a relationship with Officer Eddie Forsberg. At the time of the hearing, they were engaged. In late 1992 or early 1993, Worley advised Forsberg that while working with the Respondent, Ms. Worley had come across the name of Salvatore Secundo, a person who Ms. Worley's sister was dating. She told Forsberg that she asked the Respondent if she could see Secundo's file which was maintained in the office in which she was working. She told Forsberg that the Respondent had subsequently provided her Secundo's files in return for sexual favors. She told Forsberg that she had not wanted to have sex with the Respondent, but that she had given in to his demands when he made the information on Secundo available to her. However, she did not take the information with her, and later denied to Sgt. Parsons having had sex with the Respondent.

      
      

   10. Forsberg questioned Worley about this incident again and again, and attempted to convince her that she needed to report this matter to the police department. She generally wanted to leave matters alone, and not pursue any complaint against the Respondent.

       
       

   11. In late November 1992, Forsberg arranged to see retired Deputy Chief of Police Bill Scott about the allegations which Ms. Worley had made. Scott, who was friend of Ms. Worley's grandmother, met with Forsberg because he thought Forsberg wanted to talk about Forsberg's relationship with the young woman.

       When he learned the real purpose of the visit and of Forsberg's desire to

       commence an investigation of the matter, Scott unequivocally advised Forsberg not to become involved personally, but that he would talk to Chief Tucker about the matter when he saw him.

       
       

   12. After talking with Scott and contrary to his advise, Forsberg told Worley that Scott had said they needed to obtain evidence against the Respondent. Forsberg convinced Worley to ask the Respondent to provide information again about Secundo to see if he would offer it in exchange for sex. In furtherance of this plan, Forsberg obtained a tape recorder and a car with a hatchback in which he could hide and overhear a conversation. He and Worley worked out what she should say to obtain the evidence he was seeking.

       
       

   13. Pursuant to this plan, Worley called the Respondent and arranged to meet him in the parking lot of a local K-Mart store so that she could speak with him privately. Forsberg listened in on her telephone conversation with the Respondent, but testified that he did not record the conversation. He then hid a tape recorder on Worley's person, and hid himself in the back of the car when Worley drove to the K-Mart parking lot close to police headquarters to meet the Respondent. The purpose of this activity was to obtain evidence to support the allegations that the Respondent had provided NCIC data to Worley in exchange for sexual favors.

       
       

   14. Worley met with the Respondent, who arrived in his police car alone at the meeting place. Worley directly asked the Respondent to provide her with NCIC data on Secundo. The Respondent asked her who Secundo was, and why she wanted the information. In furtherance of the plan to obtain evidence against the Respondent, Worley told him that her sister was seeing Secundo, that Secundo was selling drugs, and that she was afraid for her sister. She reminded the Respondent that he had investigated Secundo earlier. She gave him identifying data on Secundo, and he said he would check and get back with her the next week when he returned to town. Forsberg caused Worley to tape this conversation without the Respondent's knowledge.

       
       

   15. Within a short time after their meeting and at the continued urging of Forsberg, who had not been satisfied with Worley's handling of the meeting because of her inability to obtain damning admissions or statements from the Respondent, Worley called the Respondent back and advised him that she needed the information right away. Again, the Respondent told Worley he would get back in touch with her. Forsberg testified that he did not tape this conversation.

       
       

   16. Worley called the Respondent a third time later that evening, and Forsberg taped this conversation without advising the Respondent that he was recording the conversation and without the Respondent's permission. The Respondent advised Worley that the information which she sought was not available because it had been purged from the records, and that he could not get it for her. It is alleged that the Respondent thereafter offered to provide the material to Worley for sexual favors.

       
       

   17. The transcript of Ms. Worley's testimony regarding the alleged offer in this conversation is as follows:

       
       

       Transcript Page 161 & 162:

       By Mr. Lober:

       Q: What did he tell you about the criminal history, if anything?

       A: That it was purged, closed. Q: I'm sorry. Purged?

       A: Purged.

       Q: Okay. What else?

       A: That he couldn't run it because it was sealed. Basically, that's all.

       Q: In mentioning that it was sealed, did he indicate whether or not he was able to give it to you?

       A: He indicated that he couldn't give it to me.

       Q: Despite him telling you he couldn't give it to you, did he offer to give it to you:

       A: Yes.

       Q: Take your time. Just nice and slow. What were the terms that he was offering to provide you the criminal history? What was he --

       A: How bad do you want it.

       Q: And, when he used the word, "it", "how bad do you want it," is he referring to the criminal history record of Salvatore Secundo?

       A: No.

       Q: What was he referring to? A: Sex

       
       

   18. Forsberg took the tapes he had made to retired Deputy Chief Scott, and Scott again advised him not to become personally involved. Scott said he would advise Chief Tucker about the matter the following Monday when Scott and Tucker were scheduled already to meet. Scott did bring the matter to the Chief's attention, and the Chief assigned the matter to the department's internal affairs section to investigate.

       
       

   19. After the investigation was referred to internal affairs, Sgt. Parsons conducted an interview of the Respondent, and asked him if he had offered to provide information to Worley in return for sexual favors. The Respondent denied this, but admitted to Sgt. Parsons, after listening to the tapes, that it could be interpreted as being an offer to exchange the information for sex. The charge of making a false official statement is based upon alleged contradictions between the Respondent's comments to Sgt. Parsons and this third telephone conversation which Forsberg illegally taped. No information was provided by the Respondent to Worley, and it is not alleged that information was exchanged.

   
   

   1. A secretary who had worked in the Criminal Investigation Division for many years testified concerning the actual security practices surrounding NCIC information. It is supposed to be accessed only for official investigations; however, this requirement is honored in the breach by employees of the department who obtained information unofficially.

      
      

   2. Based upon the illegally recorded tape, the Respondent was discharged from his position with the police department by the City. Sgt. Parson's based her investigative conclusions that the Respondent violated policies and statutes based upon her review of the tape illegally made by Forsberg.

      
      

      CONCLUSIONS OF LAW

      
      

   3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

   4. The Criminal Justice Standards and Training Commission charges the Respondent with failing to maintain good moral character as required by Section 943.13(7), Florida Statutes, and more specifically Rule 11B-27.0011(4), Florida Administrative Code, which provides in pertinent part:

      
      

      1. For the purpose of the Commission's implementation of any of the penalties en- umerated in Section 943.1395(6) or (7), 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 796.07, 873.012, 837.05, Florida Statutes, or

         3. The perpetration by the officer of an act or conduct which:

1. significantly interferes with the rights of others; or

2. significantly or adversely affects the functioning of the criminal justice system of an agency thereof; or

3. shows disrespect of the laws of the state or nation; or

4. causes substantial doubts concerning the officer's moral fitness for continued service,...

1. The Petitioner urges that the Respondent violated the provisions above by corruptly using his office to secure a special privilege, benefit, or exemption for himself or others; disclosing or using information not available to the general public for personal gain or benefit; soliciting a bribe; soliciting prostitution; accessing willfully and without authorization any computer; giving false testimony to a law enforcement officer concerning the alleged commission of a crime; giving a false statement, under oath, not in an official proceeding, in regard to any material matter.

   
   

2. Taking the charges in reverse order, there is no evidence that the statement given to Sgt. Parsons, which is alleged to be false, was given under oath. In fact the transcript reflects that it was not a sworn statement. There is no violation of Section 837.012, Florida Statutes.

   
   

3. The statement given to Sgt. Parsons was provided in relation to an internal administrative investigation, and the Respondent was advised in writing at the outset of the interview that his admissions could not be used against him in a criminal hearing. Sgt. Parsons was not investigating a crime, and the Respondent's statement did not concern an alleged crime. The Respondent did not violate Section 837.05, Florida Statutes.

   
   

4. The Respondent was authorized access to the NCIC computer files by virtue of his assignment to CID. The TPD's regulations limited access to those files to official purposes. The cover story provided by Ms. Worley to the Respondent about Secundo, who the Respondent had previously investigated, was sufficient to create investigative interest in a trained investigator. The

   statute cited, Section 815.06(1), Florida Statutes, is directed at computer hackers who access data without any color of authorization. In this case, the Respondent was authorized access, and had a legitimate investigative interest based upon Worley's story. Under the facts presented, the Respondent's access of the NCIC computer was not within the prohibition of Section 815.06(1), Florida Statutes.

   
   

5. The facts do not show any actual use of the NCIC information because it was not provided to Worley. Therefore, Section 112.313(8), Florida Statutes, was not violated.

   
   

6. The remaining allegations all related to the allegation of exchanging information for sexual favors. The Petitioner urges that this is solicitation for prostitution, unlawful use of one's official position, and solicitation of a bribe. The allegations arise from a conversation between the Respondent and Worley occurring in November of 1992, which was taped by Forsberg.

   
   

7. The facts reveal that Officer Forsberg, who had a personal relationship with Ms. Worley, planned and enlisted the aid of Ms. Worley in a conspiracy to illegally intercept a private conversation between the Respondent and Ms. Worley and subsequent telephone conversations between them contrary to federal and Florida law and in contravention of the Respondent's constitutional rights.

   
   

8. The Florida Statutes are quite clear and unequivocal regarding the subsequent use of the tape of the last telephone conversation between the Respondent and Worley which was unlawfully intercepted by Officer Forsberg. Section 934.06, Florida Statutes, provides:

   
   

   Whenever any wire or oral communication has been intercepted, no part of the content of such communication and no evidence derived therefrom may be received in evidence in any

   trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that

   information would be in violation of this chapter.

   
   

9. The Commission's argument that Officer Forsberg's intercept of the telephone conversation between the Respondent and Worley was an exception to the statute above because it was done at the instigation of a law enforcement officer is not supportable under Florida law. It does not take much imagination to predict the outcome if a "personal investigation" exception is created to the prohibitions against wire intercepts by police officers.

   
   

10. Officer Forsberg's testimony about the conversations between Worley and the Respondent and the tapes of the conversations between Worley and the Respondent were excluded. There was no objection to Worley's testimony about her conversation with the Respondent which was taped over the telephone.

    
    

11. Concerning Ms. Worley's credibility, she was pregnant and had just begun a relationship with Officer Forsberg when she first indicated to Forsberg that her sexual relations with the Respondent had been the result of exchanging sex for the information. Her initial revelation to Forsberg regarding the Respondent exchanging information for sex is not credible.

12. Having been enlisted by Forsberg to develop evidence against the Respondent, she met with the Respondent and told him she wanted to know if her sister's boyfriend, who, she told the Respondent, was dealing drugs, had been arrested so she could her sister. The Respondent took some information on the boyfriend, stated he would get the information, and call her next week when he got back in town. There was no sexual come on, no sexual innuendo, no reluctance in providing her the information, and no exchange for sex. Taken at its worse, it was an agreement to violate a departmental policy, which was not always followed to the letter, and does not adversely reflect upon his good moral character under the circumstances presented.

    
    

13. After the meeting, Worley was verbally attacked by Forsberg for failing to follow their script and failing to obtain a damning admission from the Respondent. At Forsberg's insistence, she call the Respondent back immediately. This conversation was not recorded. After the unrecorded third call, Worley calls the Respondent again. It is this conversation which is the basis for the allegations.

    
    

14. As stated above, telling Ms. Worley whether her sister's boyfriend had or had not been arrested may have been a violation of departmental policy, but it does not rise to the level of impairing one's good moral character under these circumstances. Although revealing some NCIC information might reflect on an officer's character, there is nothing in these facts which indicates more than a simple departure for procedure. Committing a felony reflects adversely on moral character. Committing an offense which evidences an evil heart reflects adversely on moral character. The Respondent's agreement to tell Ms. Worley whether her sister's boyfriend had or had not been arrested does not reflect adversely on moral character.

    
    

15. Regarding the allegation that the Respondent accepted an offer by Worley to exchange sex for the records (a bribe), according to Worley, she never made such an offer. If she did not make the offer, he could not accept it.

    
    

16. Whether the Respondent offered to provide the information in exchange for sex must be assessed from Ms. Worley's testimony and the Respondent's statements to Sgt. Parsons. Ms. Worley's credibility suffers from the inconsistency of her statements. She told Sgt. Parsons that the Respondent offered to exchange the information for sex; however, she testified at hearing that the Respondent asked her how badly did she want to have sex. A conversation between the two on how badly she wanted sex is not an act between persons of the Respondent's and Ms. Worley's age which would besmirch their good moral character. She reported what she and Forsberg had sought, which is what she wanted to hear, and concluded that the Respondent was offering to give her the information in exchange for sex.

    
    

17. The Respondent, when asked by Sgt. Parsons if he had offered to exchange information for sex, said he had not.

    
    

18. The standard of proof in a decertification proceeding is clear and convincing. Ferris v. Turlington, 510 So.2d 392 (Fla. 1987). Whether the Respondent was attempting to persuade Ms. Worley to have sex with him, which is not an immoral act, or offering to exchange information for sex, which would be, is dependent upon his intent, his meaning. His intent cannot be ascertained from the reports of the conversation. The evidence is not clear and convincing. There was no violation of Section 838.015, Florida Statute.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That the Criminal Justice Standards and Training Commission dismiss the charges against the Respondent.

DONE and ENTERED this 22nd day of November, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN

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 22nd day of November, 1994.

ENDNOTE

1/ Portions of the taped telephone conversation were transcribed as it was played in the tape of the interview between Sgt. Parsons and the Respondent. It was the transcript of this interview which the Hearing Officer ruled was admissible after the hearing. However, when making the ruling, the Hearing Officer did not know it contained portions of the excluded wire intercept.

Notwithstanding the admissibility of the taped interview, the transcription of the excluded tape is specifically stricken from the record.

APPENDIX

CASE NO. 93-6390

The parties both submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why:

Petitioner's Recommended Order Findings

Paragraphs 1,2,3 Paragraphs 1,2

Paragraph 4 Paragraph 6,7

Paragraph 5-8 Subsumed in Paragraph 9

Paragraph 9,10 Rejected. Paragraph 10/11 based upon better

evidence.

Paragraph 11,12,13 Paragraph 12-14

Paragraph 14 Irrelevant

Paragraph 15 Paragraph 15

Paragraph 16-20 Paragraph 16

Paragraph 21 Irrelevant

Paragraph 22-24 Paragraph 16

Paragraph 25,26 Paragraph 18

Paragraph 27 Paragraph 19

Paragraph 28,29 Irrelevant

Paragraph 30 Contrary to best evidence

Paragraph 31-35 Paragraph 19 or rejected as contrary to best

evidence.

Paragraph 36 Irrelevant

Paragraph 37 Paragraph 19

Paragraph 38 Sgt. Parsons' conclusion rejected as having

been based upon the excludable tape.

Paragraph 39 Irrelevant

Paragraph 40 Contrary to best evidence. Counsel reserved

the right to raise the defense of entrapment.

Respondent's Recommended Order Findings

Paragraphs 1-4 Paragraphs 1-5

Paragraph 5 Irrelevant

Paragraphs 6-8 Paragraph 6 or irrelevant

Paragraphs 9,10 Paragraph 8

Paragraph 11 Irrelevant

Paragraph 12 Paragraph 8

Paragraphs 13-16 Paragraph 7

Paragraphs 16,17 Paragraphs 7 & 9

Paragraph 18 Paragraphs 9 & 10

Paragraph 19 Cumulative

Paragraphs 20,21 Paragraph 11

Paragraph 22 Paragraph 12

Paragraph 23 Paragraph 13

Paragraphs 24-26 Paragraphs 12 & 13 or irrelevant

Paragraph 27-30 Paragraph 14

Paragraph 31,32 Paragraph 15

Paragraph 33,34 Paragraph 16

Paragraph 35 Contrary to best evidence and Paragraph 16 Paragraph 36 Paragraph 16

Paragraph 37 Paragraph 18

Paragraph 38a Irrelevant Paragraph 38b Paragraph 20 Paragraph 39 Paragraph 19

COPIES FURNISHED:

Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Joan Stewart, Esquire

300 East Brevard Street Tallahassee, FL 32301

Leon Lowry, II, Director Criminal Justice Standards

and Training

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

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

CRIMINAL JUSTICE STANDARDS AND TRAINING

COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. CASE NUMBER: L-3696

DOAH NUMBER: 93-6390

WILLIE J. MITCHELL,

Certificate No.: 16-88-002-0

Respondent.

/

FINAL ORDER

This matter came before the Criminal Justice Standards and Training Commission (the Commission) at a public meeting on July 14, 1995, in Deerfield Beach, Florida. It was alleged by Administrative Complaint that the Respondent had violated specified sections of Chapter 943, Florida Statues, and Chapter llB-27, Florida Administrative Code. In accordance with s120.57(1), Florida Statutes, a formal hearing was held on this matter, and a Recommended Order was

submitted by a Hearing Officer from the Division of Administrative Hearings (DOAH) to the Commission for consideration. The Petitioner filed exceptions to the Recommended Order, a copy of which is attached and incorporated herein by reference.

The Commission has reviewed the Administrative Complaint, the Recommended Order, the exceptions filed by the Petitioner, the transcript of the formal hearing, the documentary evidence introduced at the formal hearing, and other pertinent documents in the case file; has heard arguments of counsel and is otherwise fully advised in the matter. The Commission finds as follows:

1. Standards for Review

   
   

   Under s 120.57(l)(h) 10, Florida Statutes, the Commission may reject or modify the Hearing Officer's conclusions of law and interpretations of administrative rules in the Recommended Order. The Commission, however, may not reject or modify the Hearing Officer's findings of fact unless the Commission determines from a review of the complete record that 1) those findings of fact were not based on competent substantial evidence or 2) the proceedings on which the findings of fact were based did not comply with the essential requirements of the law

   
   

   The Florida Supreme Court, in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957), defined "competent substantial evidence" to be evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached."

   
   

   Additionally, the Commission may not reweigh the evidence, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew simply to fit its desired conclusion. Heifetz v. Department of Business, 475 So.2d 1277 (Fla. 1st DCA 1985).

   
   

   Nor may the Commission reduce or increase the recommended penalty in the Recommended Order without first reviewing the complete record. s 120.57(1)(b)l0, Florida Statutes.

   
   

2. Rulings on Exceptions

   
   

   The Petitioner filed four exceptions to the Hearing Officer's Recommended Order. The Commission, after a full review of the record, rejects Petitioner's numbered exceptions 1, 3 and 4 and accepts exception 2.

   
   

3. Finding of Fact

   
   

   The Hearing Officer's findings of fact in paragraphs 1-22 of the Recommended Order are approved, adopted and incorporated herein by reference.

   
   

4. Conclusions of Law

The Hearing Officer's conclusions of law in paragraphs 23-42 of the Recommended Order are approved, adopted and incorporated herein by reference, with the clarification that the Commission disagrees with the Hearing Officer's exclusion of the testimony of Officer Forsberg regarding the conversations he overheard between Ms. Worley and the Respondent. Overhearing a conversation without the aid of a mechanical device does not constitute intercepting that communication within the meaning and intent of Chapter 943, Florida Statutes.

It is therefore ORDERED AND ADJUDGED that:

1. The Commission approves and adopts the recommendation of the Hearing Officer that the Administrative Complaint filed in this matter be DISMISSED.

   
   

2. This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.

SO ORDERED this 1st day of September, 1995.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

WILLIAM A. LIQUORI CHAIRMAN

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 93-006390

Orders for Case No: 93-006390