STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 96-3800

)

ZEDRICK BARBER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 18, 1997, at West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Amy J. Bardill

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Frederick W. Ford, Esquire

900 East Indiantown Road, Suite 216

Jupiter, Florida 33477 STATEMENT OF THE ISSUES

Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on September 1, 1995, when the Criminal

Justice Standards and Training Commission (Commission) issued an Administrative Complaint against the Respondent, Zedrick Barber, that alleged he had used excessive and unnecessary force, without cause, while arresting an individual; had misused his position by threatening another with arrest or criminal charges in order to coerce a resolution of a civil transaction; and had made a false statement to investigators who were performing an internal review of allegations with the intent to mislead them. Based upon the allegations, the Administrative Complaint contended that Respondent had failed to maintain the qualifications established in Section 943.13, Florida Statutes, which require a law enforcement officer to have good moral character. The Respondent denied all allegations and requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on August 13, 1996.

At the hearing, the Petitioner presented testimony from Pedro Nazon, an investigator employed by the Public Defender's Office; Randal G. Lamore, an employee at Barney's Junkyard; Glenn Gerould, a police officer with the Village of Royal Palm Beach; and Alexander Freeman, a police officer for the City of Riviera Beach. Its exhibits numbered 1, 2 (a through e), and 3 were admitted in to evidence.

The Respondent testified in his own behalf and offered the testimony of Matthew Russell, the police general counsel and advisor for the City of Riviera Beach; Wellington Lawson, an

Assistant State Attorney; Hyppolite Monfort, a customer at Barney's Junkyard; and Dexter Richardson, a police officer for the City of Riviera Beach. Respondent's exhibits numbered 1 (a through f), 2, and 3 have also been received into evidence.

The transcript of the hearing was filed with the Division of Administrative Hearings on April 22, 1997. Thereafter, the parties requested, and leave was granted, to allow the filing of Proposed Recommended Orders on or before June 27, 1997. Both parties timely filed proposed orders which have been considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Petitioner is the state agency charged with the responsibility of disciplining certified law enforcement officers.

2. Respondent is a certified law enforcement officer, certificate number 70463, and is also a certified instructor, certificate number 128954.

3. At all times material to the allegations of this case, Respondent was employed as a patrol police officer for the City of Riviera Beach, Florida.

4. Barney's Junk Yard (Barney's) sells used automobile and truck parts taken, primarily, from vehicles stored on the business premises.

5. Prominently displayed above the counter at Barney's is a sign stating: "NO CASH REFUNDS." The store policy of not

   allowing customers to receive cash refunds for parts purchased has resulted in many disgruntled buyers. The local police, in this instance the City of Riviera Beach, have responded to numerous calls as a result of disagreements which have arisen over Barney's policy.

   
   

6. Both before and after the incident complained of, the police have escorted the customers off the property and advised them that their disagreements over Barney's policy is a civil matter which they must resolve elsewhere.

7. The incident complained of in this case occurred in July, 1994. Mr. Monfort went to Barney's to purchase a used radiator. Although Mr. Monfort disputes that he was advised by Barney's staff that they did not have the radiator he needed, it is certain Mr. Monfort knew, and understood, Barney's no-cash refund policy. Barney's employee, Mr. Lamore, assisted Mr. Monfort with his purchase.

8. Because he knew the part would not work as Mr. Monfort intended, Mr. Lamore wrote "as is" on Mr. Monfort's receipt several times. According to Mr. Lamore, Mr. Monfort insisted that he would be able to use the radiator Barney's did have. It was not a surprise to Mr. Lamore that Mr. Monfort returned to Barney's unsatisfied since the part would not work as he had intended.

9. To attempt to accommodate Mr. Monfort, Mr. Lamore let

   him exchange the part for another. Again, it was Mr. Lamore's opinion that the part would not work, but he could not dissuade Mr. Monfort. Barney's allowed Mr. Monfort to exchange the part three times.

10. Subsequently, Barney's offered a fourth exchange but Mr. Monfort demanded a cash refund from Mr. Whittemore who was on duty at the counter. When Mr. Whittemore refused, the men became embroiled in a verbal dispute. Eventually, Mr. Whittemore called law enforcement and requested that Mr. Monfort be ejected from the business premises.

11. Respondent and his partner, Officer Freeman, responded to the call. Upon arrival, Respondent questioned Mr. Monfort regarding the dispute. Respondent then directed Mr. Whittemore to make a cash refund to Mr. Monfort. When Mr. Whittemore protested, Respondent advised him that he would be placed under arrest if he continued to refuse to give the refund.

12. When Mr. Lamore overheard Respondent threaten Mr. Whittemore with arrest, he became angry and called Respondent an "illiterate monkey." Mr. Lamore used racial epithets including "nigger" and told Respondent he could be sued.

13. Respondent, who was already annoyed by the call to Barney's, then grabbed Mr. Lamore with the intent of placing him under arrest for obstructing justice. Based upon this incident, Mr. Lamore was later charged with resisting arrest without violence and obstructing justice.

14. Respondent dragged Mr. Lamore to the police cruiser and forced him into the rear seat. As Mr. Lamore did not cooperate in the process, he received scrapes to his hands and legs as well as a bump on the head. Respondent did not kick or punch Mr. Lamore, and the weight of the credible evidence supports a finding that Mr. Lamore did not cooperate with the detention.

15. Notwithstanding his claims to the contrary, Mr. Lamore's injuries were superficial and could have been avoided had he cooperated with Respondent.

    
    

16. After placing Mr. Lamore in the cruiser, Respondent returned inside to the counter and asked Mr. Whittemore if he would be next. After seeing what had occurred, Mr. Whittemore gave Mr. Monfort the cash refund as directed by Respondent.

17. At the police department Mr. Lamore filed a complaint against Respondent and showed the injuries to Lieutenant Sweetland.

18. Mr. Lamore was not trying to stop the arrest of Mr. Whittemore but was protesting same while being verbally abusive toward Respondent.

19. According to credible persons at the scene, including Mr. Monfort, Respondent grabbed Mr. Lamore within seconds after he called Respondent "nigger." The name calling, and not any physical challenge made by Mr. Lamore, precipitated Respondent's reaction.

20. Criminal charges against Mr. Lamore were later dropped by the State Attorney. Criminal charges were never filed against Mr. Whittemore.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

22. Section 943.13, Florida Statutes, provides, in part:

    
    

    943.13 Officers' minimum qualifications for employment or appointment.–

    On or after October 1, 1984, any person employed or appointed as a full-time, part- time, or auxiliary law enforcement officer or correctional officer; on or after October 1, 1986, any person employed as a correctional probation officer; and on or after October 1, 1986, any person employed as a correctional officer by a private entity under contract to the Department of Corrections or to a county commission shall:

    * * *

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

    
    

23. Section 943.1395(7), Florida Statutes, provides:

    
    

    1. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

       1. Revocation of certification.

       2. Suspension of certification for a period not to exceed 2 years.

       3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms

          and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       5. Issuance of a reprimand.

24. Rule 11B-27.0011(4), Florida Administrative Code, provides, in pertinent part:

    11B-27.0011 Moral Character.

    1. For the purposes of the Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by Section 943.13(7), F.S., is defined as:

       1. The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not.

       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 316.193, 316.1935, 327.35, 409.325, 741.30, 784.011, 784.03, 784.047, 784.048, 784.05(1), (2), 790.01(1), 790.10, 790.27, 794.027, 796.07, 800.02, 800.03, 806.101, 806.13, 810.08, 812.014, 812.015, 812.14, 817.235, 817.49, 817.563(2), 817.565, 827.04(2) and (3), 827.05, 831.30, 831.31(1)(b), 832.05(2) and (4), 837.012, 837.05, 837.06, 839.20, 843.02, 843.03, 843.06, 843.085, 847.011(1) and (2), 856.021, 870.01(1), 893.13, 914.22(2), 944.35(3), 944.35(7)(a), 944.37, 944.39, F.S., or any principal, accessory, attempt, solicitation, or conspiracy, pursuant to Chapter 777, F.S., which had the crime been committed or completed, would have been a felony offense.

       3. The perpetration by the officer of an

    act or conduct which constitutes:

    1. Excessive use of force.

    2. Misuse of official position, as defined by Section 112.313(6), F.S.

25. Section 112.313(6), Florida Statutes, provides:

    
    

    112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys.–

    * * *

    (6) MISUSE OF PUBLIC POSITION.–No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

26. The Petitioner bears the burden of proof to establish, by clear and convincing evidence, the allegations of this case. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

27. In Inquiry Concerning Davey, 645 So. 2d 398 (Fla. 1994) the court addressed the clear and convincing standard of proof and held at 404:

    . . . There must be more than a 'preponderance of the evidence,' but the proof need not be 'beyond and to the exclusion of a reasonable doubt.'

    This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

28. In this case it is alleged Respondent failed to maintain good moral character in three instances: by using excessive and unnecessary force; by misusing his position by threatening to arrest Mr. Whittemore; and by making a false statement to an internal investigator regarding the incident. As

    to two of these charges, the Petitioner has failed to meet its burden of proof. It cannot be concluded, without hesitancy, that Respondent committed two of the third violations alleged.

29. First, as to using excessive and unnecessary force, the weight of the credible evidence supports a conclusion that Respondent lost his composure when Mr. Lamore called him names. Although not physically threatening, Mr. Lamore's verbal assault on Respondent would have offended most reasonable listeners. It was Mr. Lamore's comments which led to Respondent's reaction. By placing Mr. Lamore under arrest and forcing him to the police cruiser, Respondent exhibited a lack of patience and control. This failure, however, did not constitute excessive and unnecessary force. Mr. Lamore's refusal to cooperate and resistance caused him as much physical damage as Respondent's acts. Had Mr. Lamore respected Respondent's authority and submitted peacefully, no scrapes or bumps of even a superficial level would have resulted.

30. Second, as to the allegation that Respondent unlawfully and knowingly made a false statement to an internal investigator with the police department, such conclusion cannot be supported by this record. In the heat of the situation Respondent, may have perceived Mr. Lamore to be physically threatening (the alleged misrepresentation); however, in the clearer vision that hindsight affords, it is concluded that, in fact, Mr. Lamore did not physically challenge this Respondent. Respondent's actions

    and comments were motivated by the notion that he was entitled to intercede on behalf of customers at Barney's. His "feelings" told him the staff at Barney's were not doing right by the

    no-cash refund policy. No clear and convincing evidence supports that Respondent's statement to internal affairs was based, in whole or in part, on any other motivation regardless of how erroneous.

31. The Petitioner has, however, established by clear and convincing evidence that Respondent misused his position as a law enforcement officer to coerce Mr. Whittemore to refund cash to two customers. Although not involved in the incident described above, a second customer who sought a refund when Respondent re- entered Barney's was benefited from Respondent's coercion. Respondent knew, or should have known, that the standard practice employed by law enforcement responding to Barney's had been to remove customers from the property and to refer them to civil court for resolution of their disputes. In fact, Respondent was aware his supervisor had advised him of the practice. Instead of defusing the disagreement, Respondent allowed Mr. Lamore's comments to ignite controversy further. Respondent's efforts, including the arrest of Mr. Lamore, were a misuse of his position in order to coerce Mr. Whittemore to make the cash refund and, thereby, effect a civil settlement with Mr. Monfort.

32. Having weighed the credible evidence presented, it is concluded that Respondent exercised very poor impulse control,

that he allowed the verbal comments from Mr. Lamore to excite a reaction which was inappropriate, and that he used his position as a law enforcement officer to coerce a refund. Regrettably, neither he nor his partner have chosen to admit the error of his judgment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent committed the offense of misusing his position, imposing a reprimand with a probationary period, and compelling appropriate training to assist Respondent to develop impulse control. As to the other allegations, it is recommended that they be dismissed.

DONE AND ENTERED this 4th day of August, 1997, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August 1997.

COPIES FURNISHED:

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

Standards and Training Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Amy J. Bardill, Esquire Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Frederick Ford, Esquire

900 East Indian Town Road, Suite 216 Jupiter, Florida 33477

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 96-003800

Orders for Case No: 96-003800