STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 96-1109
)
JEFFREY MEYERS, )
)
Respondent. )
) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 96-1110
)
ROBERT MILITELLO, )
)
Respondent. )
) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 96-1111
)
JEFFREY BERMAN, )
)
Respondent. )
)
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled cases on December 10 and 11, 1996, in Key West, Florida.
For Petitioner: Mark P. Brewer, Esquire
Florida Department of Law Enforcement Office of the General Counsel
Post Office Box 1489 Tallahassee, Florida 32302-1489
For Respondent: James C. Casey, Esquire
Slesnick and Casey
10680 Northwest 25th Street, Suite 202
Miami, Florida 33172-2108
Whether the Respondents committed the offenses alleged in the respective administrative complaints and, if so, the penalties that should be imposed against their certifications as law enforcement officers.
Each of the three administrative complaints that underpin these consolidated proceedings alleged that each respective Respondent committed fraud in violation of Section 817.034, Florida Statutes. The underlying factual issues pertain to whether each Respondent engaged in the practice of “double dipping” by working a private security detail while on duty with
the Key West Police Department (KWPD) or by working security details for two motels at the same time.
Respondents timely challenged the allegations of the administrative complaints, the matters were referred to the Division of Administrative Hearings, and these consolidated proceedings followed.
All three Respondents are charged with violating Section 943.1395(6) and (7), Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4)(a) or (c), Florida Administrative Code, all of which require a law enforcement officer to have and maintain good moral character. Each administrative complaint was subsequently amended to revise the factual allegations.
The amended factual allegations against Respondent Meyers were as follows:
That on or between July 1, 1993, and July 5, 1994, Respondent Meyers, did willfully and unlawfully defraud systematically, during a course of conduct with intent to defraud one or more persons or entities, to wit: the Key West Police Department, and/or the Holiday Inn, by obtaining property, to wit: US currency in the amount of less than
$20,000.
The amended factual allegations against Respondent Berman were as follows:
That on or between July 1, 1993, and July 30, 1994, Respondent Berman, did willfully and unlawfully defraud systematically, during a course of conduct with intent to defraud one or more persons or entities, to
wit: the Key West Police Department, and/or the Holiday Inn, and/or the Key Ambassador Hotel by obtaining property, to wit: US currency in the amount of less than $20,000.
The amended factual allegations against Respondent Militello were as follows:
That on or between November 1, 1993, and April 5, 1994, Respondent Militello, did willfully and unlawfully defraud systematically, during a course of conduct with intent to defraud one or more persons or entities, to wit: the Key West Police Department, and/or the Holiday Inn, by obtaining property, to wit: US currency in the amount of less than $20,000.
At the formal hearing, Petitioner presented the testimony of Susie Stiles, Jennifer A. Gee, Christine Waite, Joseph Shurmur, Mary Canalejo and John Hardy. Ms. Stiles was, at all times pertinent to these proceedings, employed as the human resources manager of the Holiday Inn Beachside (Beachside) and was accepted as being its custodian of records. Ms. Gee was, at all times pertinent to these proceedings, a night auditor employed by the Beachside. Ms. Waite has been the controller for the Holiday Inn La Concha (La Concha) since August 1993 and was accepted as being its custodian of records. Mr. Shurmur has been the manager of the Best Western Key Ambassador (Key Ambassador) since July 1994 and was accepted as being its custodian of records. Ms. Canalejo was employed by the KWPD at all times pertinent to these proceedings and was accepted as its
custodian of records. Sergeant Hardy was, at all times pertinent to these proceedings, employed as a police officer by the KWPD. Petitioner presented three composite exhibits. All of Petitioner’s composite 1 was admitted with the exception of the following subparts, 1-A, 1-AA, 1-BB, 1-JJ, 1-KK, 1-OO, 1-PP, 1-DDD, 1-GGG, 1-JJJ, and 1-BBBB. All of Petitioner’s composite Exhibit 2 was admitted into evidence. All of Petitioner’s composite Exhibit 3 was admitted into evidence with the exception of the following subparts: 3-F, 3-J, and 3-N.
Respondent Berman and Respondent Meyers testified at the formal hearing. Respondent Militello did not appear at the formal hearing, but he was represented by counsel. In addition, the Respondents presented the testimony of the following character witnesses Sgt. Steve Hammers of the KWPD, Lt. Douglas
L. Smith of the Florida Marine Patrol, Reverend Robert Hetherington of Fifth Street Baptist Church (Key West), Dennis Wardlow (Mayor of the City of Key West), Brian W. Haff (operations director of Atlantic Key West Rescue), Capt. Edward Grantham of KWPD, Assistant Chief of Police David L. Lariz of the KWPD, and Deputy John W. McGee of the Monroe County Sheriff’s Office. In addition, the parties stipulated that the character testimony of Dean Thompson, general manager of the Hibiscus Hotel, would have been the same as the other character witness testimony for Respondent Berman. Respondents offered
four exhibits, each of which was admitted into evidence.
A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties timely filed proposed recommended orders, which have been duly considered by the undersigned.
At the times pertinent to these consolidated proceedings, all three Respondents were employed as police officers by the Key West Police Department (KWPD).
At the times pertinent to these consolidated proceedings, the KWPD did not permit police officers to work another job while the officer was on duty.
At the times pertinent to these consolidated proceedings, the KWPD did not have a written policy pertaining to off duty officers working special details at business establishments, including hotels.
The Holiday Inn Beachside (Beachside), the Best Western Key Ambassador (Key Ambassador), and the Holiday Inn La Concha (La Concha) are three hotels in Key West that, at the times
pertinent to these consolidated proceedings, employed KWPD officers to provide security at night. Each of the hotels paid the officers by the hour. The Beachside and the Key Ambassador are located in relatively close proximity on the eastern end of Key West. The La Concha is located in the downtown area of Key West.
Susie Stiles was the director of human resources for the Beachside at the times pertinent to these proceedings. Ms. Stiles testified that the management of the Beachside expected a hotel employee who is paid by the hour to work at the hotel and exclusively for the hotel for each hour the employee is paid. There was no evidence that Ms. Stiles had any direct dealings with any of the police officers who worked private security details for the Beachside and there was no evidence that this expectation was communicated to any of the three Respondents involved in these consolidated proceedings. At no time pertinent to these consolidated proceedings did the Beachside have a written policy or job description pertaining to off-duty police officers who provided security for the hotel. The evidence was insufficient to establish the terms and conditions of any verbal agreement between the hotel and the police officers who worked private security details.
Christine Waite has been the controller at the La Concha since August 1993. Ms. Waite testified that the
management of the La Concha expected a hotel employee who is paid by the hour to work at the hotel and exclusively for the hotel for each hour the employee is paid. There was no evidence that Ms. Waite had any direct dealings with any of the police officers who worked private security details for the La Concha and there was no evidence that this expectation was communicated to any of the three Respondents involved in these consolidated proceedings. At no time pertinent to these consolidated proceedings did the La Concha have a written policy or job description pertaining to off-duty police officers who provided security for the hotel. The evidence was insufficient to establish the terms and conditions of any verbal agreement between the hotel and the police officers who worked private security details.
Joseph Shurmur has been the general manager of the Key Ambassador since July 1994. Mr. Shurmur testified that the management of the Key Ambassador expected a hotel employee who is paid by the hour to work at the hotel and exclusively for the hotel for each hour the employee is paid. Mr. Shurmur was not responsible for obtaining police officers to perform the security detail at the times pertinent to this proceeding.
There was no evidence that this expectation was communicated to any of the three Respondents involved in these consolidated proceedings. At no time pertinent to these consolidated
proceedings did the Key Ambassador have a written policy or job description pertaining to off-duty police officers who provided security for the hotel. The evidence was insufficient to establish the terms and conditions of any verbal agreement between the hotel and the police officers who worked private security details.
Respondent Meyers was certified by the Commission as a law enforcement officer on November 28, 1989, and was issued certificate number 34814.
Respondent Meyers was employed as a police officer with the Key West Police Department (KWPD) from October, 1989, until he resigned on August 24, 1994. At the time of the formal hearing, he was the night supervisor for Friendly Cab Company in Key West.
Respondent Meyers worked as a road patrol officer, narcotics detective, and K-9 officer during his tenure with the KWPD.
Respondent Meyers was never disciplined prior to the events that underpin this proceeding, and he received satisfactory or above performance evaluations while a member of the KWPD.
At a meeting in August 1994, it became widely known among the police force that Officer John Hardy of the KWPD was
conducting a criminal investigation into whether any police officers had engaged in what was referred to as “double dipping”, which is the practice whereby an officer worked a private security detail while the officer was on duty with the KWPD.1 Inspector Tom Walker of the KWPD was also conducting an internal affairs investigation into the same matter. Officer Hardy and Inspector Walker asked the officers attending the meeting, including Respondent Meyers, for any information that may assist them in their investigations.
In response to that offer, Respondent Meyers gave them a list (Petitioner Exhibit 2F) that purports to show dates on which other officers worked security details under his name. Pertinent to this proceeding, the list represents that Officer Don Tempe worked private security detail under the name of Jeff Meyers at the La Concha during the following dates in 1994:
June 12, June 18, June 23, June 27, and July 3. The list also represents that Officer Carl Nemeth worked a private security detail under the name Jeff Meyers on June 29, 1994.
The duty rosters, including the overtime records, of the KWPD2 and the records of the La Concha reflect that on the following evenings, Respondent Meyers was on duty with the KWPD and was, for a least part of his KWPD shift, paid to provide security for the La Concha: July 17, 1993; July 18, 1993; August 12, 1993; April 3, 1994; June 12, 1994; June 18, 1994;
June 23, 1994; June 27, 1994; June 29, 1994; July 1, 1994; and
July 3, 1994.
The records of the Beachside reflect that Respondent Meyers provided security services to that hotel on July 28, 1993, between the hours of 1 a.m. and 5 a.m., while the records of the La Concha reflect that he claimed to have worked security for the La Concha during part of the same time. These records (Petitioner’s Exhibits 2L and 2M) contain Respondent Meyers’ handwriting.
Petitioner Exhibit 2G is a KWPD employee overtime report that reflects that Respondent Meyers worked overtime beginning at 10:30 p.m. on July 17, 1993, and extending to 7:00
a.m. the next day. Petitioner Exhibit 2H is a KWPD employee overtime report that reflects that Respondent Meyers worked overtime beginning at 11:00 p.m. on July 18, 1993, and extending to 4:30 a.m. the next day. Petitioner Exhibits 2G and 2H do not contain Respondent Meyers’ handwriting. Petitioner Exhibit 2I is a La Concha time sheet3 that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers worked security for the La Concha on July 17 and 18, 1993, beginning at 11:00
p.m. each evening and extending to 7:00 a.m. the following mornings.
Petitioner Exhibit 2P is a KWPD overtime report that reflects that Respondent Meyers worked overtime beginning August
12, 1993, at 10:30 p.m. and extending to 6:00 a.m. the next day. The exhibit does not contain Respondent Meyers’ handwriting.
Petitioner Exhibit 2Q is a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers claimed to have worked security for the La Concha beginning at 11:00 p.m. on August 12, 1993, and extending to 7:00 a.m. the following morning.
Petitioner Exhibit 2T is a KWPD employee overtime report that reflects that Respondent Meyers worked overtime for the KWPD beginning at 11:30 p.m. on April 3, 1994, and extending to 3:30 a.m. the following morning. Petitioner Exhibit 2U is a La Concha time sheet that reflects that Respondent Meyers claimed to have worked security for the La Concha beginning at 11:00 p.m. on April 3, 1994, and extending to 7:00 a.m. the following morning. Both of these exhibits contain Respondent Meyers’ handwriting.
Petitioner Exhibit 2X is a KWPD employee time record that reflects that Respondent Meyers was on regular duty beginning at 9:00 p.m. on June 12, 1994, and extending to 7:00
a.m. the next day. The exhibit does not contain Respondent Meyers’ handwriting. Petitioner Exhibit 2Y is a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers claimed to have worked security for the
La Concha beginning at 11:00 p.m. on June 12, 1994, and extending to 7:00 a.m. the following morning.
Petitioner Exhibit 2AA is a KWPD employee time record that reflects that Respondent Meyers was on regular duty with the KWPD beginning at 9:00 p.m. on June 18, 1994, and ending at 7:00 a.m. the following morning. The exhibit does not contain Respondent Meyers’ handwriting. Petitioner Exhibit 2CC is a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers claimed to have worked security for the La Concha beginning at 11:00 p.m. on June 18, 1994, and extending to 7:00 a.m. the following morning.
Petitioner Exhibit 2BB is a KWPD employee overtime report that reflects that Respondent Meyers worked overtime for the KWPD between 9:00 p.m. and midnight on June 23, 1994. The exhibit does not contain Respondent Meyers’ handwriting. Petitioner Exhibit 2CC, a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers claimed to have worked security for the La Concha beginning at 11:00 p.m. on June 23, 1994, and extending to 7:00
a.m. the following morning.
Petitioner Exhibit 2EE is a KWPD employee time record that reflects that Respondent Meyers was on regular duty with the KWPD beginning at 9:00 p.m. on June 27, 1994, and extending to 7:00 a.m. the following day. The exhibit does not contain
Respondent Meyers’ handwriting. Petitioner Exhibit 2GG is a KWPD overtime report that contains Respondent Meyers’ handwriting and reflects that he worked overtime for the KWPD from midnight to 4:00 a.m. on June 29, 1994. Petitioner Exhibit 2HH is a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers claimed to have worked security for the La Concha on June 27, 28, and 29, 1994, beginning at 11:00 p.m. each evening and extending to 7:00 a.m. each following day.
Petitioner Exhibit 2JJ is a KWPD employee time record that reflects that Respondent Meyers was on regular duty with the KWPD beginning at 4:00 p.m. on July 1, 1994, and extending to 6:30 a.m. the following day. The exhibit does not contain Respondent Meyers’ handwriting. Petitioner Exhibit 2MM is a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent Meyers claimed to have worked security for the La Concha on from 11:00 p.m. on July 1,1994, to 7:00 a.m. the following morning.
Petitioner Exhibit 2KK is a KWPD employee time record that reflects that Respondent Meyers was on regular duty with the KWPD for ten hours beginning at 9:00 p.m. on July 3, 1994. The exhibit does not contain Respondent Meyers’ handwriting. Petitioner Exhibit 2MM, is a La Concha time sheet that contains Respondent Meyers’ handwriting and reflects that Respondent
Meyers claimed to have worked security for the La Concha beginning at 11:00 p.m. on July 3, 1994, and extending to 7:00
a.m. the following morning.
Respondent Meyers was paid by the La Concha on an hourly basis based on the La Concha time sheets. Respondent Meyers was also paid for the hours he was on regular or overtime duty with the KWPD.
Respondent Meyers testified that he never worked for the La Concha while he was on either regular or overtime duty for the KWPD. He testified that he did not maintain a calendar and that he could not attest to the validity of the KWPD records that were not in his handwriting, nor could he challenge their validity.4
Respondent Meyers testified that although the La Concha time records reflect that he worked certain days in June and July 1994, he did not actually work those shifts. He testified that his roommate and fellow KWPD Officer, Don Tempe, worked off-duty details at the La Concha to pay for a motorcycle that Officer Tempe had purchased from him. He further testified that Officer Tempe worked under the name of Jeff Meyers because Officer Tempe did not handle money well and wanted to expedite the payment of the check to Respondent Meyers. Respondent Meyers also testified that Officer Carl Nemeth worked one off- duty detail in his name, but there was no explanation as to why
he did so. Respondent Meyers could not testify as to what dates Officer Tempe or Officer Nemeth worked the off-duty details in his name because he did not maintain a calendar. The information he provided Officer Hardy and Inspector Walker on August 15, 1994, purport to show those dates.5
Respondent Meyers resigned from the KWPD on August 24, 1994, because he was threatened with criminal prosecution.
Since resigning, he has continued to participate and cooperate in both state and federal trials.
The character witnesses who testified on behalf of Respondent Meyers were Sgt. Steve Hammers, Brian William Haff, and Deputy John McGee. Sgt. Hammers has been employed by KWPD for 14 years and has known Respondent Meyers since 1989. Mr. Haff, the operations manager and chief of EMS services for Atlantic Key West Rescue, has known Respondent Meyers for five or six years. Deputy McGee is employed by the Monroe County Sheriff’s office and has known Respondent Meyers since 1989. These witnesses consider Respondent Meyers to have been an above average police officer and believe him to be trustworthy. These witnesses testified generally that Respondent Meyers has a reputation for the highest integrity, for observing the rights of others, and for good moral character.
Deputy McGee testified that Respondent Meyers has applied for a position of employment with the Monroe County
Sheriff’s Office. A decision on that application is pending the resolution of this proceeding.
Respondent Berman was certified by the Petitioner as a law enforcement officer on October 16, 1970, and was issued certificate number 95697. Respondent Berman was subsequently certified by Petitioner as a law enforcement instructor and was issued certificate number 131431.
Respondent Berman was employed as a KWPD officer, primarily assigned to patrol duties during his 13 year tenure with the KWPD, which ended with his resignation in August 1994. He was threatened with criminal prosecution and there was a threat that his wife would be the target of a criminal investigation if he did not resign.
Respondent Berman was disciplined by the KWPD prior to the events that are pertinent to this proceeding for making comments regarding special details. He was not otherwise disciplined and he received satisfactory or above evaluations during his career.
On the following dates, Respondent Berman, while off- duty as a police officer, provided security for two hotels during the same night shift: August 3, 1993; August 4, 1993; August 12, 1993; September 12, 1993; October 10, 1993; October 31, 1993; and March 1, 1994. The two hotels involved were the
Beachside and the Key Ambassador. Respondent Berman testified that the night personnel at both hotels knew that he was providing security for the two hotels and did not complain. He further testified that he used a walkie-talkie to stay in touch with personnel from both hotels. He further testified that he had never been told by either hotel or by any KWPD personnel that he could only work one security detail at the time. This testimony is found to be credible and consistent with the testimony of Jennifer Gee, the night auditor for the Beachside and with the statements taken from other hotel personnel by Officer Hardy during the course of his criminal investigation.
Payment by each hotel was based on the number of hours worked by Respondent Berman during a shift. The shifts were typically from 11:00 p.m. to 5:00 a.m. On the dates that he provided security for the two hotels, Respondent Berman was paid for working a full six hour shift by each hotel.
The duty rosters of the KWPD and the records of the Beachside reflect that on the following evenings, Respondent Berman was on duty with the KWPD and was paid, for at least part of his KWPD shift, to provide security for the Beachside: October 20, 1993; March 14, 1994; March 28, 1994; April 7, 1994; May 29, 1994; June 19, 1994; June 20, 1994; June 25, 1994; July 9, 1994; July 10, 1994; and July 17, 1994.
Respondent Berman does not contest the accuracy of
these records. Respondent Berman testified that he stopped by the Beachside while he was on duty if he knew that no off-duty officer was working the security detail. He gave the hotel personnel his cellular telephone number and his beeper number. He refused to complete security reports because he was on-duty, but he wrote notes to the hotel staff on various occasions.
Respondent Berman testified that he provided this service for the Beachside so the hotel would continue to use off-duty police officers. He also testified that Jennifer Gee, the night auditor, filled out a time record that reflected the time he was on call. Respondent Berman was paid by the hotel
for the time he was on call, even though he was on-duty with the KWPD at the same time he was on call with the Beachside. Ms.
Gee’s testimony corroborated that she knew when Respondent Berman was on-duty with the KWPD and that she filled out the time sheets for him.
There was no evidence as to whether Respondent Berman acted beyond the scope of his official duties by going by the Beachside when he was on duty.
The character witnesses who testified on behalf of Respondent Berman were Lt. Douglas L. Smith, Rev. Robert Hetherington, Mayor Dennis Wardlow, Brian William Haff, Capt. Edward Grantham, and Assistant KWPD Chief David Vincent Lariz. Lt. Smith is employed by the Florida Marine Patrol and was
formerly employed as a trooper with the Florida Highway Patrol. Lt. Smith has known Respondent Berman for over twenty-two years. Rev. Hetherington is the pastor of the Fifth Street Baptist Church in Key West and has known Respondent Berman of over 11 years. Mayor Wardlow, the Mayor of the City of Key West and the Assistant Director of Monroe County Mosquito Control, has known Respondent Berman for over 40 years. Mr. Haff also testified on behalf of Respondent Meyers and has known Respondent Berman for approximately six years. Capt. Grantham is in charge of the road division of the KWPD and has known Respondent Berman for over 13 years. Asst. Chief Lariz is the assistant police chief for the KWPD and has known Respondent Berman for over 20 years. These witnesses consider Respondent Meyers to have been an above average police officer and believe him to be trustworthy. These witnesses testified generally that Respondent Berman has a reputation for the highest integrity, for observing the rights of others, and for good moral character.
Respondent Militello was certified by the Commission as a law enforcement officer on December 22, 1989, and was issued certificate number 105295.
On the following dates, Respondent Militello, while off-duty as a police officer, provided security for two hotels during the same night shift: November 19, 1993; December 13,
1993, and December 28, 1993. The two hotels involved were the Beachside and the Key Ambassador.
Payment by each hotel was based on the number of hours worked by Respondent Militello during a shift. The shifts were typically from 11:00 p.m. to 5:00 a.m. On the dates that he provided security for the two hotels, Respondent Militello was credited for working a full six hour shift by each hotel.
The duty rosters of the KWPD and the records of the La Concha reflect that on the following evenings, Respondent Militello was on duty with the KWPD and was paid, for at least part of his KWPD shift, to provide security for the La Concha: February 9, 1994, and March 5, 1994.
KWPD evaluations reflecting satisfactory performance and certain letters of commendation pertaining to Respondent Militello are contained in Respondent Exhibit 4.
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550
So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d
112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:
That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Section 943.13(7), Florida Statutes, provides that the minimum qualifications for a law enforcement officer include the requirement that the officer have good moral character.
Rule 11B-27.0011(4), Florida Administrative Code, provides that the failure to maintain good moral character is established if an officer has committed an act which would constitute a felony offense, whether criminally prosecuted or not.
Petitioner argues that each of the Respondents violated the provisions of Section 817.034(4), Florida Statutes. That provision makes it a criminal offense to commit a “scheme to defraud”. When the value involved is less than $20,000, the offense is classified as a felony of the third degree. The term “scheme to defraud” is defined by Section 817.034(3)(d), Florida
Statutes, as follows:
(d) 'Scheme to defraud' means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.
Petitioner cites Florida Standard Jury Instructions in Criminal Cases in support of its argument that it must prove the following to establish that each Respondent committed a scheme to defraud as defined by Section 817.034(3)(d), Florida Statutes:
That each Respondent knowingly and unlawfully obtained and used the funds of various employers:
That each Respondent did so with the intent to either temporarily or permanently deprive those employers of their right to the property (funds) or any benefit from it, and that
Each Respondent did so by a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false and fraudulent pretenses, representations or promises or willful misrepresentations of a future act.
The evidence did not establish that any of these three Respondents failed to perform their assigned regular or overtime duties with the KWPD. There was no evidence that an officer could not routinely go to the premises of a hotel during the course of his shift or that he could not agree to be on call and provide his cellular telephone and beeper numbers to a hotel while on duty with the KWPD. There was insufficient evidence to
establish that these officers reported regular or overtime hours that they did not work. Likewise, there was insufficient evidence to establish that any of these officers received, as the result of fraud, compensation from the KWPD to which he was not entitled. Accepting compensation from the hotels is an apparent violation of KWPD policy. The violation of that policy does not, however, establish fraud. It is concluded that the Petitioner failed to establish by clear and convincing evidence that Respondent Meyers, Respondent Berman, or Respondent Militello defrauded the KWPD.
It is also concluded that Petitioner failed to establish by clear and convincing evidence that these Respondents defrauded any of the three hotels because the evidence did not establish, clearly and convincingly, the terms and conditions of the agreements between the hotels and the officers. The testimony from Ms. Stiles, Ms. Waite, and Mr. Shurmur that the Beachside, the Key Ambassador, and the La Concha generally expected hourly employees to work exclusively for the hotel does not establish the agreement these hotels had with the officers who were working the security details. There were no written agreements, policies, or job descriptions, and there was no evidence as to any verbal communications that had been made to the officers. There was no evidence that any of these three hotels ever complained of paying for services the
hotel did not receive. Because there was insufficient evidence to establish the terms and conditions of the agreements these Respondents had with the hotels, it is concluded that Petitioner failed to establish by clear and convincing evidence that these Respondents defrauded these hotels as alleged by the amended administrative complaints.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that each of these three amended administrative complaints be dismissed.
DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida.
Hearings
Hearings
CLAUDE B. ARRINGTON
Administrative Law Judge Division of Administrative
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative
this 1st day of May, 1997.
1 Respondents, through counsel, challenge the accuracy of the KWPD records on several grounds. First, as with any similar organization, occasional mistakes are made in time records. Second, at different times various supervisors for the night watch dated the time record the evening the shift began while others dated the time record the morning the shift ended.
Third, it was not uncommon for officers to switch shifts whereby one officer would work the scheduled shift of another officer.
When that happened the duty roster could reflect the name of the person who was scheduled to work and not the name of the officer who actually worked. Payroll records would thereafter reflect the officers who actually worked. Duty rosters would not necessarily reflect the fact that one officer had switched shifts with another officer. The conclusion by the undersigned that the KWPD records introduced into evidence at the formal hearing can be relied upon is based on a review of those records and upon the testimony of Officer John Hardy that he checked the duty rosters against the payroll records to verify the accuracy of the time records.
2 These time sheets were used to report the names and social security numbers of officers who worked the various details during a week. Compensation for those services was based on the time sheets.
3 The KWPD records employee time records were typically completed by the watch commander. Consequently, the absence of Respondent Meyers’ handwriting on those records does not cast doubt of their validity.
4 Respondent Meyers’ explanation as to why these records show him working two jobs at one time is completely uncorroborated and flies in the face of time records, some of which are in his own handwriting. This testimony is found to be self-serving and lacking in credibility.
COPIES FURNISHED:
Mark Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
James C. Casey, Esquire Slesnick & Casey
10680 Northwest 25th Street, Suite 202
Miami, Florida 33172-2108
A. Leon Lowry, II, director Division of Criminal Justice
Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
1 During the course of his investigation, Officer Hardy developed evidence that some officers had worked two private security details at the same time.
2 Respondents, through counsel, challenge the accuracy of the
KWPD records on several grounds. First, as with any similar organization, occasional mistakes are made in time records. Second, at different times various supervisors for the night watch dated the time record the evening the shift began while others dated the time record the morning the shift ended.
Third, it was not uncommon for officers to switch shifts whereby one officer would work the scheduled shift of another officer.
When that happened the duty roster could reflect the name of the person who was scheduled to work and not the name of the officer who actually worked. Payroll records would thereafter reflect the officers who actually worked. Duty rosters would not necessarily reflect the fact that one officer had switched
shifts with another officer. The conclusion by the undersigned that the KWPD records introduced into evidence at the formal hearing can be relied upon is based on a review of those records and upon the testimony of Officer John Hardy that he checked the duty rosters against the payroll records to verify the accuracy of the time records.
3 security These time sheets were used to report the names and social
security numbers of officers who worked the various details during a week. Compensation for those services was based on the time sheets.
4 The KWPD records employee time records were typically completed
by the watch commander. Consequently, the absence of Respondent Meyers’ handwriting on those records does not cast doubt of their validity.
5 Respondent Meyers’ explanation as to why these records show him working two jobs at one time is completely
uncorroborated and flies in the face of time records, some of which are in his own handwriting. This testimony is found to be self-serving and lacking in credibility.
| Issue Date | Proceedings |
|---|---|
| Aug. 13, 1997 | Final Order filed. |
| May 01, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held December 10 and 11, 1996. |
| Feb. 13, 1997 | Petitioner`s Proposed Recommended Order filed. |
| Feb. 06, 1997 | Respondents` Proposed Recommended Order, Findings of Fact, Argument, Citation of Authority, and Conclusions of Law filed. |
| Jan. 15, 1997 | (3 Volumes) Transcript w/cover letter filed. |
| Dec. 10, 1996 | CASE STATUS: Hearing Held. |
| Nov. 27, 1996 | (Petitioner) Prehearing Stipulation (filed via facsimile). |
| Nov. 21, 1996 | (From M. Brewer & A. Bardill) Notice of Appearance and Substitution of Counsel filed. |
| Nov. 01, 1996 | (3) Petitioner`s Request for Admissions; (3) Notice of Serving Petitioner`s Second Set of Interrogatories to Respondent; (3) Interrogatories filed. |
| Sep. 10, 1996 | Order Granting Continuance and Re-Scheduling Hearing sent out. (hearing reset for Dec. 10-11, 1996; 9:00am; Key West) |
| Sep. 09, 1996 | Joint Motion for Continuance filed. |
| Sep. 04, 1996 | Joint Motion for Continuance (filed via facsimile). |
| Aug. 28, 1996 | Order Granting Motion to Amend Administrative Complaints sent out. |
| Aug. 14, 1996 | (Petitioner) Motion for Leave to Amend filed. |
| Aug. 14, 1996 | (Petitioner) Notice of Serving Petitioner`s First Set of Interrogatories to Respondent; Interrogatories (5 copies) filed. |
| Jul. 09, 1996 | Order Granting Continuance and Amended Notice sent out. (hearing rescheduled for Oct. 24-25, 1996; 9:00am; Key West) |
| Jul. 02, 1996 | Agreed Motion for Continuance filed. |
| Jun. 07, 1996 | Amended Order Granting Continuance and Amended Notice (Amended to Correct Scrivener`s Error) sent out. (hearing continued to Oct. 10-11, 1996; 9:00am; Key West) |
| Jun. 06, 1996 | Order Granting Continuance and Amended Notice sent out. (hearing rescheduled for Oct. 10-11, 1996; 9:00am; Key West) |
| Jun. 05, 1996 | (Petitioner) Agreed Motion for Continuance filed. |
| Jun. 03, 1996 | Petitioner`s Response to Respondent`s Request for Discovery; Petitioner`s Request for Discovery filed. |
| Mar. 25, 1996 | (Respondent) Request for Discovery filed. |
| Mar. 25, 1996 | (From J. Casey) Notice of Appearance (for case no. 96-1110); (2) Request for Discovery (For case nos. 96-1110, 96-1111) filed. |
| Mar. 25, 1996 | (From J. Casey) Notice of Appearance filed. |
| Mar. 25, 1996 | (From J. Casey) Notice of Appearance (For case no. 96-1111) filed. |
| Mar. 22, 1996 | Prehearing Order sent out. |
| Mar. 22, 1996 | Notice of Hearing sent out. (hearing set for June 26-27, 1996; 9:00am; Key West) |
| Mar. 22, 1996 | Order Granting Consolidation sent out. (Consolidated cases are: 96-1109, 96-1110 & 96-1111) |
| Mar. 20, 1996 | Ltr. to HO from A. Bardill re: Reply to Initial Order filed. |
| Mar. 11, 1996 | Initial Order issued. |
| Feb. 29, 1996 | Motion For Consolidation (DOAH case nos. 96-1109 through 96-1111); Agency referral letter; Administrative Complaint; Election of Rights w/attch filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 12, 1997 | Agency Final Order | |
| May 01, 1997 | Recommended Order | Charges of fraud not established. |
