STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS and ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-3460

)

CHRISTIAN WILSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on May 6, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Richard Courtemanche, Esquire

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

For Respondent: Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D-207 Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On October 31, 1994, Petitioner issued an Administrative

Complaint against Respondent. This cause was transferred to the

Division of Administrative Hearings on July 25, 1997, to conduct the evidentiary proceeding requested by Respondent.

Petitioner presented the testimony of Officers Kelly Macina, Jorge Fernandez, and Jorge Castano. The Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered

1. , 6, 7, and 10 and Respondent's Exhibit numbered 1 were admitted in evidence.

   The court reporter took custody of the exhibits at the conclusion of the evidentiary hearing and filed them with the transcript but for Respondent's Exhibit numbered 1, which consisted of a diagram drawn by the witnesses while they testified in this proceeding. On July 22, 1998, the parties stipulated that this matter may be resolved without that missing exhibit.

   Both parties submitted post hearing proposed recommended orders. Those documents have been considered in the entry of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Respondent was certified by Petitioner as a law enforcement officer on December 26, 1989, and was issued certificate numbered 121960.

   2. From time to time, the City of Miami Police Department conducts prostitution stings. An undercover female police officer is assigned to be the prostitute or "decoy." She stands at the assigned location. Another undercover police officer acts

      as "look-out," hiding nearby and watching the "prostitute" until she signals that she has been offered money for sex. She advises the person soliciting prostitution where to drive so they can complete their transaction.

   3. Upon her signal, the look-out radios a description of the vehicle and tag number to the "take-down" officers who are in their patrol cars nearby. The take-down officers then stop the vehicle and arrest the person who solicited prostitution. After she gives the signal, the "prostitute" walks over to the look- out, describes the person who made the offer of money for sex, advises what kind of sex was solicited and how much money was offered, and then returns to her assigned location. The look-out radios that additional information to the take-down officers who are making the arrest.

   4. On March 2, 1994, the City of Miami Police Department conducted a prostitution sting at S. W. 8th Street and 44th Court, an area with a reputation for prostitution. Officer Kelly Macina was assigned to be the prostitute, Officer Jorge Fernandez was assigned to be the look-out, and Officers Jorge Castano and Carlos Ortega were assigned to be the take-down officers in their patrol cars. The officers were instructed that Officer Macina would tell anyone soliciting her for prostitution to turn into the driveway of Burke's Motel. The motel was located on the corner opposite where she was standing.

   5. Prior to March 2, 1994, Officer Macina had only

      participated in two undercover prostitution operations in the

      
      

      15 months she had been a police officer for the City of Miami. She had received no formal training in how to conduct a prostitution sting but for a supervisor showing her the statute on solicitation to commit prostitution and telling her to read it.

   6. On that evening Respondent was driving home from a club where he had had drinks with some friends. He was driving his black Corvette east on S. W. 8th Street near 44th Court when traffic slowed due to some commotion. He saw a woman standing in the street and saw a patrol car drive up and pull over a vehicle when it drove away from the woman. It occurred to him that he might be observing an undercover operation.

   7. He continued to drive by and then noticed two patrol cars parked in an abandoned gas station lot. He thought he recognized the driver of one of the patrol cars as one of his buddies from the apartment complex where Respondent lived. Respondent continued driving to his apartment at Ponce de Leon Boulevard and S. W. 8th Street. When he got there, he changed his clothes, checked his wallet and found that he had only $8, and then left to meet a friend at the pool hall near S. W. 8th Street and Red Road.

   8. Driving west on 8th Street, he decided to stop and speak to his buddy whom he thought he had seen in the patrol cars when he earlier drove by the 44th Court area. When he reached 44th

      Court, he turned right, heading north on 44th Court, made a

      
      

      U-turn, and headed back on 44th Court, heading south. He saw that the patrol cars were no longer at the gas station lot.

   9. When he stopped at the stop sign on 44th Court at

      
      

      S. W. 8th Street, Macina approached his vehicle and initiated a

      conversation. Before Respondent drove away, Macina gave the "take-down" signal. Respondent had given no money or other item to Macina.

   10. Respondent turned right on S. W. 8th Street, heading west toward the pool hall. When he had gone approximately

       15-25 yards, he saw lights in his rear-view mirror bearing down on him. He pulled over, and a patrol car pulled in behind him.

   11. Over a loud speaker, Respondent was told to exit his vehicle, which he did. He was told to come back to the patrol car, which he did. He asked the police officers why he was being stopped and if he was being stopped for speaking to a pretty girl.

   12. The take-down officers asked to see Respondent's driver's license. When he opened his wallet, one of them saw a badge and asked Respondent if he were a police officer. Respondent advised them he was a police officer with the City of Coral Gables. The take-down officers exercised their discretion, determining not to arrest Respondent. They told him to leave, and Respondent apologized to them for interfering in their sting operation.

   13. Eighteen people were arrested that night.

       
       

   14. The following day, Officer Macina was asked to give a sworn statement to internal affairs at the City of Coral Gables Police Department. She did not remember what sex act Respondent was alleged to have requested, did not remember how much money

       was offered for that sex act, and did not remember the conversation she had with Respondent (except that he allegedly had said in response to her questioning that he was married and that his wife was on vacation). By the time of the final hearing in this cause, she had also forgotten which take-down signal she had used that evening.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

   16. The Administrative Complaint filed in this cause alleges that Respondent violated Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer in the State of Florida have good moral character. Petitioner has failed to prove Respondent guilty of the allegations in the Administrative Complaint.

   17. The law is well settled that Petitioner must prove its allegations in this disciplinary proceeding by clear and convincing evidence. The evidence is clear and convincing that Respondent and Officer Macina had a conversation on March 2, 1994, at the intersection of S. W. 8th Street and 44th Court and that Officer Macina gave the take-down signal. As to Respondent

committing an act involving a lack of good moral character, however, there is no competent evidence that Respondent did so. Even when Officer Macina was interviewed the day following the encounter between her and Respondent, she was unable to testify as to the conversation she had with Respondent. Petitioner, accordingly, has failed to prove that Respondent violated Section 943.1395 (6) or (7), Florida Statutes, or Rule 11B- 27.0011(4)(b) or (c), Florida Administrative Code, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 23rd day of July, 1998.

COPIES FURNISHED:

Richard Courtemanche, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D-207 Miami, Florida 33129

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

A. Leon Lowry, II, Director

Division of Criminal Justice Standards and Training Commission

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 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: 97-003460

Orders for Case No: 97-003460