STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0943

)

JEFFREY A. HALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Arcadia, Florida, on June 1, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Paul D. Johnston

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Frank Ribel, Jr.

25 East Oak Street Arcadia, Florida 33821

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of not maintaining good moral character and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 21, 1994, Petitioner filed an Amended

Administrative Complaint. After the voluntary dismissal of Paragraph 2(a) at the beginning of the hearing, the allegations are that, on April 28, 1992, Respondent unlawfully exposed his penis in a public place in a vulgar and indecent manner. The Amended Administrative Complaint alleges that Respondent thereby failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and thus violated Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code.

By Election of Rights dated January 4, 1994, Respondent demanded a formal administrative hearing as to the original administrative complaint.

At the hearing, Petitioner called two witnesses and offered into evidence one exhibit. Respondent called six witnesses and offered into evidence one exhibit. Both exhibits were admitted. In addition, the Hearing Officer announced during the hearing that he would take official notice of the Florida Official Transportation Map, which is identified as Hearing Officer Exhibit 1.

Rulings on timely filed proposed findings are in the appendix.

FINDINGS OF FACT

1. Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on May 13, 1986, and was issued certificate #29-85-222-02. He is currently certified as a law enforcement officer.

   
   

2. Respondent was born on April 9, 1962. He was first employed by the DeSoto County Sheriff's Office as a dispatcher in October 1983. In February 1984, Respondent was reassigned to serve as a correctional officer at the DeSoto County jail. After two years, he was reassigned to the road patrol. In May 1988, Respondent was reassigned to the detective division, where he began working in narcotics before being transferred to property crimes. In late 1989 or early 1990, he was reassigned to violent crimes.

   
   

3. Sometime following the assignment to the detective division, the DeSoto County Sheriff's Office assigned Respondent an unmarked 1986 Ford Taurus. The car, which was a maroon four- door sedan, had a car radio antenna on the right front of the car. By April 1992, the car also had two police antennas--one on the roof and one on the trunk.

   
   

4. A few months after Respondent received the car, the DeSoto County Sheriff's Office began to participate in an anti- drug program known as DARE. In April 1991, Respondent received various DARE materials, including bumper stickers. He immediately placed two stickers on the rear bumper of the Ford Taurus, with one on the left side and the other on the right side.

   
   

5. The other Sheriff Office cars displayed only one DARE sticker. In late June or early July 1991, Lt. Rick White, who was Respondent's immediate supervisor, informally advised Respondent that he should have only one bumper sticker on his car. Respondent did not believe that Lt. White wanted the second sticker removed immediately, so Respondent did nothing at the time.

   
   

6. When Respondent and his wife returned from a vacation in early September 1991, the DeSoto County Sheriff's Office issued him a letter of counseling concerning the car. The letter was vague, but pertained to the untidiness of his vehicle. Respondent construed the discipline to have arisen out of the two bumper stickers, so he immediately removed one sticker from the car. He removed the sticker in late March 1992.

   
   

7. About a month later, on April 28, 1992, Respondent received a telephone call from a person who had come into possession of a golf club that had been among the items stolen recently from a local country club. To recover the stolen property, Respondent agreed to drive to the person's place of business, which was a car dealership located in Port Charlotte on US 41.

8. Gassing up before leaving Arcadia, Respondent's odometer read 41,586.5 miles. After conducting a brief and unsuccessful search of woods where the perpetrators had indicated they had hidden most of the stolen golf equipment, Respondent drove by the subject country club, which is the Kings Way County Club. As he left the country club, which is on the line dividing DeSoto and Charlotte Counties, Respondent radioed to the DeSoto County Sheriff's Office dispatcher that he was leaving the county. The time was 9:33 am.

   
   

9. Arriving at the Pt. Charlotte car dealership at about 10:30 am, Respondent found the person who had called him, recovered the golf club, and discussed elements of the case for about 45 minutes. Following a lead the person gave him, Respondent placed a long distance call to a location in Ft. Myers at 10:50 am.

   
   

10. Leaving the Port Charlotte car dealership at about 11:15 am, Respondent drove south on US 41 to US 17 in Punta Gorda, where he turned north and drove back to Arcadia. At 11:59 am, Respondent radioed the dispatcher and stated that he had reentered DeSoto County. The effect of this announcement was that Respondent was again available to take emergency calls if the dispatcher determined that Respondent was the closest unit to an scene requiring law enforcement.

    
    

11. After reentering DeSoto County, Respondent drove directly to the Sheriff's Office where he dictated from his notes a supplemental report and a property receipt for the golf club. He gave them to the secretary around 12:20 pm.

    
    

12. After delivering the dictation to the secretary, Respondent was asked by Captain William Wise to transport sheriff's cars to the radio shop so that their antennae could be fixed. Respondent and Captain Wise left with the first cars around 1:30 pm. When they completed the assignment, Respondent, as was customary, had his car washed by a prisoner and returned to duty at 1:57 pm.

    
    

13. The present case arises due to the allegations of Charlene Jeffcoat. Ms. Jeffcoat testified that, on April 28, she was driving her 1988 Lincoln Town Car at about 65 miles per hour south on Interstate 75 from Clearwater to her home in the north Ft. Myers area. She testified that, while driving in the inside lane, she suddenly noticed a burgundy Ford Taurus approaching her from the rear. She described the car as a 1991-92 four door sedan.

    
    

14. Ms. Jeffcoat testified that she slowed down to allow the Taurus to pass. As the other car passed, she looked over and saw a man with dark glasses holding the steering wheel in his left hand with his left arm straight out. She testified that his buttocks were up in the air and he was masturbating his penis, the top of which she could see as he passed her.

    
    

15. As he passed her, she testified that she noticed two DARE bumper stickers on the rear bumper. Ms. Jeffcoat stated that he then slowed down and she passed him, evidently still at normal cruising speed. Once she had done so, she testified that the other driver pulled out into the left lane and overtook her car. She said that she looked over and noticed that he was again steering with his left hand and was holding a writing tablet out with his right extended toward her. The top sheet of paper stated in letters about three inches high, "Will you watch me jack off?" She testified that only about two feet separated the cars at this point. Ms. Jeffcoat reported that the other driver had slowed down to about 30 miles per hour, but she nonetheless allowed him to pass.

16. Ms. Jeffcoat stated that she decided at this point that this could be a dangerous situation. She said that she had decided to slow down to his speed to observe as much as she could about the car and driver. She stated that slowed down and wrote down the tag number of the Taurus. She testified that she noted that the driver had brown hair with a receding hairline, in businesslike attire, and appeared to be 35-45 years old.

    
    

17. Ms. Jeffcoat testified that the Taurus then pulled over in an emergency turnoff alongside the road, and she speeded up toward the next exit, which is the Bayshore exit. She testified that this was her normal exit. She testified that the driver of the Taurus had exposed himself when she was about three to five miles north of the Bayshore exit. The Bayshore exit is immediately north of the Caloosahatchee River and serves the north Ft. Myers area. The next exit to the north is the Tucker Grade exit, which is about 17 miles from the Bayshore exit. About 23 miles separate the Bayshore exit from the US 17 exit in Punta Gorda to the north.

    
    

18. Ms. Jeffcoat testified that she reached home in about five minutes after the Taurus pulled over. She reportedly had recorded some of the information while driving her car and the information was fresh in her mind. She stated that, once she got home, she called her employer and said she was coming into the office. She testified that telephone records indicate that this call took place at 12:20 pm. Once she got to work, she recorded more notes concerning the incident. She did not call any law enforcement officers until she reached her workplace in Immokalee.

    
    

19. There are several serious discrepancies in Ms. Jeffcoat's recounting of events. First, she noted while still in the car and later while at work that the incident took place at 1:20 pm, not 12:20 pm. Second, she saw two bumper stickers, which were not on Respondent's car on April 28, 1992. These two discrepancies are the most serious.

    
    

20. Two other serious problems exist with Ms. Jeffcoat's testimony. First, she did not notice any of the three antennae prominently displayed on Respondent's car. Second, if she was intent enough to capture all of the details that she said she did, it is unclear why she would have awaited calling the police until after she had gotten to work.

    
    

21. Several factors undermine Ms. Jeffcoat's story to a lesser degree than the four matters set forth in the two preceding paragraphs. It is unclear why Ms. Jeffcoat decided that she had a problem only when the man showed her the sign, and not earlier when he exposed himself and masturbated. Of course, the perceived risk could have been that this man was now stalking her, rather than that he had exposed himself to her. But if that were the risk, then she did not explain adequately how she felt sufficiently comfortable driving with the other car long enough to notice all of the details that she claimed she did. If there were enough traffic on the highway to allow her to feel safe, then the presence of such traffic would have tended to discourage the driver from exposing himself, at least without fear of detection.

    
    

22. It is also unclear how Ms. Jeffcoat could read a writing tablet, given the size of the letters and the distance between the tablet and herself as the two cars were moving, even at reduced speeds. It is not clear how a driver could raise his buttocks in the air and expose himself, while masturbating, and still steer his car at high speeds.

23. Ms. Jeffcoat's identification of the alleged perpetrator was uncertain. On May 4, 1992, two representatives of the DeSoto County Sheriff's Office visited Ms. Jeffcoat and showed her two photographs of deputies of the DeSoto County Sheriff's Office. The first photograph contained about 20 uniformed officers. When presented with it, Ms. Jeffcoat identified as the perpetrator a person other than Respondent. When given the second photograph, which contained 5-6 men, not including the person she had thought was the perpetrator, Ms. Jeffcoat identified Respondent. It is likely that Respondent was in both photographs.

    
    

24. Probably the biggest problem with Petitioner's case is the chronology of events, under either of the times that Ms. Jeffcoat has reported for the incident. Shortly after the alleged incident, Ms. Jeffcoat wrote down, on two separate occasions, that the alleged incident took place at 1:20 pm. This would be the more reliable information, given when it was recorded, but Respondent could not have been the perpetrator if this was the time of the incident.

    
    

25. The radio log records that Respondent was back in service, after transporting the cars in Arcadia, at about 1:00 pm. If the alleged incident took place at 1:20 pm, he would have had to drive over 40 miles in 20 minutes, including 26 miles on a two-lane road. This is not possible.

    
    

26. It is less likely that Ms. Jeffcoat's subsequent recollection of the time of the incident is more reliable, although, if it were, the chances are only slightly greater that Respondent could have been the perpetrator.

    
    

27. If Ms. Jeffcoat actually called her employer at 12:20 pm from her home following the alleged incident, as she later claimed, then the alleged incident would have taken place at about 12:10 to 12:15 pm. The problem for Petitioner with this version is that Respondent is recorded in the radio log as reporting that he was back in the DeSoto County at 11:59 am. It is highly unlikely that, after reporting in and making himself available for emergency calls, Respondent would then turn around and drive down Interstate 75. If Respondent had been inclined to cruise down the interstate, he would not have reported back in at 11:59 am. If Respondent in fact crossed into DeSoto County at 11:59 am, he could not have driven the 30+ miles in the 10-15 minutes required to be at the scene of the alleged incident at the earlier time that Ms. Jeffcoat later reported.

    
    

28. It is of some interest that Ms. Jeffcoat's later recollection of the time of the incident better (but only slightly) incorporates the information from the radio log kept by the DeSoto Sheriff's Office. It is also curious that, when she affirmatively misidentified the number of bumper stickers on the car, Ms. Jeffcoat accurately identified the appearance of Respondent's car about a month earlier than the alleged incident. The record permits no conclusions as to the source of these items in Ms. Jeffcoat's report; her inclusion of Respondent's license tag number almost certainly rules out coincidence (unless, on the remote chance, she misrecorded the license tag from another maroon Taurus).

    
    

29. The mileage factor is of less value than the alternative times reported by Ms. Jeffcoat. The distance between Arcadia and Port Charlotte is about 33 miles. The distance between the Port Charlotte car dealership and Punta Gorda is about four miles. The distance between Punta Gorda and Arcadia is about 26 miles. Thus, the total distance driven by Respondent on April 28 prior to the car washing was about 63 miles.

30. Respondent drove the car on typical law enforcement business for the remainder of April 28 and all of April 29 and 30. When he gassed up the car sometime during the day on May 1, the odometer read 41,716 miles, so that Respondent had driven 130 miles over three days.

    
    

31. Taking away the trip on the morning of April 28, Respondent drove a total of about 70 miles for two complete workdays (April 29 and 30) and parts of two more weekdays (April 28 and May 1). If an additional 40 mile down-and-back trip were added to allow Respondent to drive his car almost all the way down to the Bayshore exit of Interstate 75, then he would have driven only 30 miles over two full workdays and parts of two other workdays, during which time he also drove his car home when through with work.

    
    

32. The mileage factor is of limited utility because the record does not disclose how far Respondent commuted daily or how much he drove the car after the car wash and before the next gassing. However, DeSoto County is a rural county and requires driving considerable distances by a deputy charged with the responsibilities of the type that Respondent was assigned at the time.

    
    

33. There were clear differences in the demeanor of Ms. Jeffcoat and Respondent, even after allowing for the fact that, as a sheriff's deputy in crimes against persons and property, Respondent presumably has testified many times. Respondent seemed straightforward in his answers, which he offered without hesitation, as though he were merely reciting what actually happened that day.

    
    

34. Although appearing to be a person of average or above average intelligence, Ms. Jeffcoat frequently repeated or misconstrued even simple questions, as though she were trying to correlate the details of a story that she had constructed, rather than merely recount remembered events. Other unfavorable aspects of her demeanor could be attributed to injuries that she had recently sustained, which presumably necessitated the use of a cervical collar and cane at the hearing. But there was no testimony that she was on medication while she testified, and her manner of cautiously attacking questions--by repeating them or misconstruing them so as to answer simpler questions-- undermined her credibility as a witness.

    
    

35. Respondent's reputation is generally good, but badly marred by a 1989 incident in which, while he was visiting Savannah, Georgia, he was arrested for public indecency and pleaded guilty to disorderly conduct. The record offers little description of the events leading up to the arrest, although Respondent explained that he pleaded guilty to a lesser offense in order to avoid being suspended without pay while waiting four months for trial. In any event, the DeSoto County Sheriff's Office investigated the matter and concluded that an appropriate punishment was merely a ten day additional suspension without pay, which, when added to the earlier suspension, left Respondent suspended without pay for about a month.

    
    

36. Based on the foregoing, Petitioner has not proved by clear and convincing evidence that Respondent publicly exposed himself to Ms. Jeffcoat at either 12:10-12:15 pm or 1:20 pm on April 28, 1992, while driving in the vicinity of the Bayshore exit on Interstate 75.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

38. Section 943.13(7) requires that a law enforcement officer "have good moral character . . .." Section 943.1395(6) provides that Petitioner may revoke the certification of any officer who is not in compliance with Section 943.13(7).

    
    

39. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

40. In this case, Petitioner has failed to prove the material allegations by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that Petitioner enter a final order dismissing the amended administrative complaint.

ENTERED on August 10, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on August 10, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-6: adopted or adopted in substance. 7: rejected as irrelevant.

8-9: rejected as unsupported by the appropriate weight of the evidence. 10-13: rejected as unnecessary. These proposed findings accurately

incorporate Ms. Jeffcoat's testimony. Given the finding that Respondent was not the perpetrator, it is unnecessary to find whether Ms. Jeffcoat in fact witnessed someone other than Respondent perpetrate the events that she described.

14-24: rejected as unsupported by the appropriate weight of the evidence. 25: rejected as unnecessary.

26-27: adopted or adopted in substance.

28: rejected as unsupported by the appropriate weight of the evidence.

29-30: rejected as irrelevant, given the finding that Respondent was not the perpetrator.

31-35: rejected as subordinate.

36 (first sentence): adopted or adopted in substance.

36 (remainder): rejected as unnecessary.

37: rejected as unsupported by the appropriate weight of the evidence. 38-39: rejected as subordinate.

40-43: adopted or adopted in substance.

44 (first sentence): rejected as irrelevant.

44 (second sentence)-51: adopted or adopted in substance.

52-54: rejected as unsupported by the appropriate weight of the evidence. 55: adopted or adopted in substance.

56-57: rejected as subordinate and recitation of testimony.

58: adopted or adopted in substance, although the reference to alcohol is rejected as unsupported by the appropriate weight of the evidence and irrelevant.

Rulings on Respondent's Proposed Findings

A.1-E.3 (first sentence): adopted or adopted in substance.

E.3 (second sentence): rejected as unsupported by the appropriate weight of the evidence and relevance.

F.1-F.4: adopted or adopted in substance.

G.1-G.7: rejected as irrelevant and speculation.

H.1-H.4: rejected as subordinate and recitation of testimony.

COPIES FURNISHED:

Paul D. Johnston Assistant General Counsel Florida Department of

Law Enforcement

P.O. Box 1489

Tallahassee, FL 32302-1489

Attorney Frank Ribel

25 East Oak St.

Arcadia, FL 33821

A. Leon Lowry, II Director

Division of Criminal

Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302

James T. Moore Commissioner

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

Michael Ramage

Acting 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.

Docket for Case No: 94-000943

Orders for Case No: 94-000943