STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 96-1558

)

LEONARD FICKEISEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing on June 5, 1996, in Melbourne, Florida.

APPEARANCES

For Petitioner: Karen D. Simmons

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Joan Stewart

Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 25, 1995, Petitioner alleged that Respondent unlawfully solicited, induced, enticed, or procured another person to commit prostitution, lewdness, or assignation with himself. The Administrative Complaint alleges that Respondent thus violated Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code, by failing to maintain good moral character, as required by Section 943.13(7).

By election of rights dated September 11, 1995, Respondent demanded a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence six exhibits. Respondent called one witness and offered 16 exhibits into evidence. All exhibits were admitted except Respondent Exhibit Number 13.

The court reporter filed the transcript on June 21, 1996. Rulings on proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Respondent is 60 years old. Petitioner certified Respondent as a correctional officer on May 5, 1989. Respondent holds Correctional Certificate Number 99065.

   
   

2. On February 27, 1994, several officers of the Melbourne Police Department were conducting a prostitution sting in the area of U. S. Route 1 and Irwin Street in Melbourne. This is an area frequented by prostitutes.

   
   

3. In the role of the prostitute was a female detective, who wore jeans, tennis shoes, and a tank top without a bra. She was walking the streets when, around 5:45 p.m., Respondent turned off U. S. Route 1, down a short side street, and into a field, where he turned his car around. He stopped the car and, after waiting a couple of minutes, motioned for the detective to approach.

   
   

4. As the detective approached the car, Respondent mouthed the words, "open the door," while pointing to the front passenger door. The detective did so, but did not get in.

   
   

5. Respondent asked the detective if she was working. She replied that she was and asked what was he looking for. He asked for a "blow job," which means oral sex. The detective asked how much and Respondent replied "$10."

   
   

6. The detective said that was fine. She gave the signal for her backup officers to approach the vehicle and arrest Respondent.

   
   

7. A marked patrol car drove up to Respondent's car. Respondent started to pull out, but did not make it far. The uniformed officers took Respondent to a nearby police van where he was provided with the arrest paperwork and a notice to appear in court. The arrest report cited a violation of Section 796.07, Florida Statutes.

   
   

8. In the police van, Respondent was very upset and asked if they would please let him go because he was a correctional officer. He added: "I've given up cigarettes and smoking. I've given up alcohol. But I'm not going to give up sex. I'm a lonely old man. Can't you please just give me a break? If you give me a break, you'll never see me in your city again."

   
   

9. Fifteen days before his criminal trial on misdemeanor prostitution charges, Respondent filed a complaint against the police officers, alleging that they were lying about the prostitution. At the nonjury trial, the court found Respondent guilty of the charge and sentenced him to six months' probation, fined him $200 plus court costs, and ordered him to submit to an tests for sexually transmitted diseases, and to attend an AIDS awareness class.

   
   

10. Respondent's employer, the Department of Corrections, disciplined Respondent by suspending him without pay for ten days. The Department later reduced the suspension to five days. Respondent is currently employed by the Department at the Kissimmee Community Correctional Center.

    
    

11. Respondent receives high praise from his employer. By letter dated June 4, 1996, Lt. Patricia M. Gilmore of the Kissimmee Community Correctional Center, stated, "with profound pleasure," that Respondent exceeds the demands

    placed on him and that he is "intelligent, personable, intuitive, and goal- oriented."

    
    

12. By letter of the same date, Sgt. Bill Solomon, also of the Kissimmee Community Correctional Center, stated that, since Respondent's employment at the Center on August 19, 1994, he has been "loyal, dedicated and most of all an asset to this facility." Sgt. Solomon reported that Respondent is the senior correctional officer on the third shift and serves as officer in charge when the sergeant is off duty.

    
    

13. Respondent has no disciplinary history. The presentence investigation revealed no prior convictions, except for a conviction (or possibly only an arrest) for skinny dipping 40 years ago. Other mitigating circumstances are detailed in the next section.

    
    

14. There are no aggravating circumstances. However, Respondent has had some difficulty accepting responsibility for the poor judgment that he displayed on February 27, 1994.

    
    

15. Respondent testified at the hearing that his attorney advised him to file the complaint against the police officers. Respondent claimed that his attorney had him so confused that he testified differently at his criminal trial about his intentions to stop and talk to the detective. Respondent also testified during the hearing that his attorney may have improperly influenced his testimony at the criminal trial. Respondent claimed that the criminal trial was flawed by the failure of his attorney to make objections. Respondent testified that he could not convince his attorney to raise an entrapment defense because he was friends with the female detective who had arrested Respondent. However, the criminal trial transcript reveals that the attorney argued entrapment.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 943.13(7) requires that law enforcement officers must "[h]ave a good moral character "

    
    

18. Section 943.1395(6) provides that Petitioner shall revoke the certificate of any officer who is not in compliance with the provisions of Section 943.13(7).

19. Rule 11B-27.0011(4) provided at the time of Respondent's arrest: For the purpose of the Commission's implement-

    ation of any of the penalties enumerated 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:

    * * *

    b. The perpetuation by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether

    criminally prosecuted or not: Section 796.07.

20. Respondent was convicted of violating Section 796.07(3), which provides that it is unlawful to "solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself "

    
    

21. Section 796.07(1)(a) provides that "prostitution" is the "giving or receiving of the body for sexual activity for hire." Section 796.07(1)(b) provides that "lewdness" is "any indecent or obscene act." Section 796.07(1)(c) provides that "assignation" is the "making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement."

    
    

22. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

23. Petitioner has proved by clear and convincing evidence that Respondent was guilty of soliciting the female detective to commit prostitution, lewdness, or assignation with himself.

    
    

24. In the absence of mitigating circumstances, Rule 11B-27.005(3)(b)8 recommends revocation for a violation of Section 796.07 prohibiting prostitution or lewdness.

    
    

25. Rule 11B-27.005(4) provides that Petitioner may deviate from the penalty guidelines after consideration of the circumstances. Circumstances include whether the officer used his authority to facilitate the misconduct, whether the officer committed the misconduct while on duty, the officer's employment status at the time of the final hearing, character or employment references, the number of violations in the present case and past violations, the length of time since the violation, the length of time that the officer has been certified, the effect of the penalty on the officer's livelihood, the pecuniary benefit or self-gain to the officer as a result of the misconduct, and the effect of disciplinary action taken by the employing agency. All of these factors suggest that the penalty in this case should be mitigated.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of violating Section 943.1395(7) and suspending his certificate for three months.

ENTERED on July 10, 1996, 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 July 10, 1996.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-3: adopted or adopted in substance. 4-8: rejected as subordinate.

9: adopted or adopted in substance. 10-18: rejected as subordinate.

19: adopted.

20-25: rejected as subordinate. 26: adopted.

27-31: rejected as subordinate.

32-33: adopted or adopted in substance. 34: rejected as subordinate.

35: adopted.

36-37: rejected as recitation of testimony. 38-41: adopted or adopted in substance.

42-43: rejected as recitation of testimony. 44-48: adopted or adopted in substance.

49-55: rejected as subordinate and irrelevant. 56: adopted.

57-58: rejected as subordinate.

59-61: adopted or adopted in substance.

Rulings on Respondent's Proposed Findings

1-2: adopted or adopted in substance.

3-13: rejected as subordinate or irrelevant.

14-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance.

COPIES FURNISHED:

Karen D. Simmons Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Attorney Joan Stewart

Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramagep, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 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 within which to submit written exceptions. Some agencies allow a longer period within which to submit written exceptions. You should contact the agency that will issue the final order 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.

Docket for Case No: 96-001558

Orders for Case No: 96-001558