STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

GARY W. ANDERSON, )

)

Respondent. )

Case No. 04-0675PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this matter on May 11, 2004, in Titusville, Florida, before

William R. Pfeiffer, a duly-appointed Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurie B. Woodham, Esquire

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

For Respondent: H. R. Bishop, Jr., Esquire

8738 Belarado Court

Tallahassee, Florida 32311 STATEMENT OF THE ISSUES

Whether Respondent committed the offense set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint against Respondent, Gary W. Anderson, on October 31, 2002, charging that on or about May 2, 2002, and/or May 22, 2002, Respondent unlawfully made a false statement which he did not believe to be true, under oath, in an official proceeding, in regard to a material matter, in violation of Subsection 837.02(1), Florida Statutes (2002), and that Respondent violated Subsections 943.1395(6) and/or (7), Florida Statutes, and/or Florida Administrative Code Rule 11B-27.0011(4)(a), and that Respondent failed to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which require that a law enforcement officer in the State of Florida have good moral character, and that Respondent violated the moral character qualifications by making a false statement under oath in an official proceeding.

On or about December 3, 2002, Respondent completed an Election of Rights form in which he disputed the allegations of fact and requested an administrative hearing pursuant to Section 120.57, Florida Statutes (2002). Thereafter, the case was forwarded to the Division of Administrative Hearings for an administrative hearing on February 25, 2004.

At the hearing, Petitioner presented the testimony of the following witnesses: Commander Diane Clarke (Brevard County

Sheriff's Office); Jennifer Cobb (alleged victim); Deputy Clifford Webster (Brevard County Sheriff's Office and stepfather of the alleged victim); Sergeant Rockford Roblin (Brevard County Sheriff's Office); and Inspector Joanna Vitek (Brevard County Sheriff's Office).

Respondent testified on his own behalf and presented the testimony of William Haggerty (Brevard County Sheriff's Office), Michael Green, Mark Weaver, and Buz Karnback.

During the hearing, Petitioner offered Exhibits P1 (April 22, 2002, Memo from Lieutenant Waller to Commander Clarke) and P2 (Memo to Sheriff Williams from Commander Clarke, Re: Jennifer Cobb), which were admitted into evidence. Respondent offered Exhibit R1 (Composite of Respondent's employment commendations), which was admitted.

The one-volume Transcript of the proceedings was ordered by Petitioner and filed with the Division of Administrative Hearings on June 8, 2004. The parties timely filed their respective proposed recommended orders, which have been duly considered.

FINDINGS OF FACT

1. Petitioner, the Criminal Justice Standards and Training Commission, is the legal entity responsible for certifying law enforcement officers in Florida.

2. Respondent, Gary W. Anderson, was certified by Petitioner on September 23, 1987, and was issued Law Enforcement Certificate

   No. 49406. Respondent was employed by the Brevard County Sheriff's Office for sixteen years as a deputy sheriff and attained the rank of corporal.

3. During 2001 and 2002, Jennifer Cobb, the alleged victim, worked as a waitress at Applebee's restaurant approximately four or five nights a week. She often served food and beverages to various law enforcement personnel who consistently frequented the restaurant.

4. Respondent dined and socialized in the establishment approximately three times per week during Ms. Cobb's tenure at Applebee's. Ms. Cobb admits that she and Respondent had a friendly, congenial relationship. She admits that she regularly hugged Respondent as well as other deputies when she saw them.

5. In December 2001, Ms. Cobb complained to her stepfather, Deputy Webster, that Respondent had inappropriately slapped her buttocks and had pulled her ponytail towards his lap. Although Deputy Webster was a friend and subordinate to Respondent, the evidence demonstrates that shortly thereafter, following a routine briefing meeting, Deputy Webster approached Respondent and requested him to refrain from any inappropriate touching of Ms. Cobb. Deputy Webster admits, however, that Respondent did not respond in any way to his verbal request and is not certain whether Respondent actually heard his request.

6. Notwithstanding her complaint to her stepfather in late 2001, Ms. Cobb continued to hug Respondent when she saw him. In April 2002, Ms. Cobb saw Respondent at Brevard Community College and approached him. Although Respondent was engaged in conversation on his cell phone, Ms. Cobb hugged him and then released to depart. Ms. Cobb alleges that Respondent pulled her belt towards him while he was on the phone in an apparent effort to see down her pants.

7. Respondent admits that he does not recollect tugging at her belt, but firmly denies that he intended to look down her pants. He argues, that he may have touched her waist to signify that he was releasing the call and wanted her to remain so they could talk. Ms. Cobb admits that, during the alleged incident, she did not object to or even address Respondent's alleged inappropriate behavior.

8. Ms. Cobb admits that she often initiated the hugs with Respondent and was always friendly towards him. She claims that she tolerated his "touchy" behavior, but a few times requested Respondent to stop the behavior. Respondent admits that they routinely hugged and were friendly, but denies that she ever appeared uncomfortable or even broached the subject. Respondent contends that their physical contact was always friendly and denies ever touching Ms. Cobb in an inappropriate manner.

9. In May 2002, Ms. Cobb filed a complaint with the Brevard County Sheriff's Office. Respondent was immediately suspended and advised by command staff to avoid Applebee's during the investigation. Respondent was demoted from the rank of corporal and removed from the SWAT team.

10. During the internal affairs investigation, Inspector Vitek investigated Ms. Cobb's complaint and interviewed many witnesses. Respondent was placed under oath and provided sworn testimony to Inspector Vitek. Respondent denied the allegations made by Ms. Cobb. Specifically, during his second sworn interview, on May 22, 2002, Respondent denied that he touched Cobb's buttocks, denied that he pulled her hair to his crotch, denied that he pulled out her pants at Brevard Community College, and denied that Deputy Webster had requested him to stop his behavior with Ms. Cobb. Inspector Vitek concluded that Respondent was being untruthful.

11. Sheriff Williams provided Respondent an opportunity to recant his denials in his predetermination hearing and Respondent declined. Thereafter, Sheriff Williams concluded that Respondent was being untruthful and terminated him.

12. The case was reviewed by the Civil Service Board which upheld the investigation and sustained the untruthfulness finding.

    CONCLUSIONS OF LAW

    
    

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

    § 120.569, Fla. Stat. (2002).

    
    

14. It is well settled in the State of Florida that a business or professional license is subject to suspension or revocation only upon proof by clear and convincing evidence of the alleged violations. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992). In this case, Petitioner bears the ultimate burden to prove by clear and convincing evidence that Respondent committed the alleged violations contained within the complaint.

15. Pursuant to Subsection 943.13(7), Florida Statutes (2002), correctional officers shall:

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

    
    

16. The evidence demonstrates that Respondent maintained his certification during his nearly fifteen years of service and had an excellent employment record. Following Ms. Cobb's allegations, and the subsequent investigation, Petitioner seeks to revoke Respondent's certification for allegedly lying under oath and thereby failing to maintain good moral character. Pursuant to

    Subsection 943.1395(7), Florida Statutes (2002), Petitioner may impose a range of discipline, from certification revocation to reprimand, upon an officer who has failed to maintain good moral character.

17. For purposes of imposing disciplinary action against certified officers for failing to maintain good moral character, Florida Administrative Code Rule 11B-27.0011(4) defines the term and states in pertinent part:

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

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

          
          

18. As Petitioner points out, Subsection 837.02(1), Florida Statutes (2002), designates certain false statements as a felony and states that:

    (1) . . . whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree. . . .

    
    

19. Petitioner alleges that Respondent intentionally made one or more false statements during his sworn testimony. Petitioner therefore argues that Respondent's purported false statements clearly and convincingly prove that he has failed to

    maintain good moral character. Petitioner's argument is not supported by the evidence.

20. After thoughtful consideration of all of the evidence, Petitioner has failed to carry its serious burden to prove, by clear and convincing evidence, that Respondent intentionally lied to Inspector Vitek regarding his activities with Ms. Cobb. While it is clear that Ms. Cobb and Respondent routinely and consensually, touched and hugged the other, Petitioner presented insufficient evidence that Respondent engaged in offensive or inappropriate behavior and that he knew or should have known that Ms. Cobb was purportedly bothered by their interactions. Petitioner has failed to prove that Respondent intentionally lied to Inspector Vitek when he denied engaging in inappropriate contact with Ms. Cobb.

21. To the contrary, Ms. Cobb admits that she was friendly with and routinely hugged many of the officers who frequented Applebee's and continued to initiate contact with Respondent even after his alleged behavior. Furthermore, Ms. Cobb questionably states that she chided Respondent on a few occasions for his offensive conduct, yet despite the frequency of visits and purported crowded environment, there is no witness to corroborate Ms. Cobb's version. Notwithstanding Ms. Cobb's claim that there were witnesses present who saw Respondent's inappropriate behavior and overheard her chiding, Petitioner

    presented no witness to support her allegations. Respondent, on the other hand, presented credible witnesses to the contrary.

22. With respect to Deputy Webster's testimony, the evidence demonstrates that Deputy Webster, in some fashion, requested Respondent to stop the alleged activity. His testimony is credible. However, the evidence indicates that Respondent failed to hear or understand his request. Deputy Webster admits that Respondent made no response to his comments. Respondent firmly denies that he ever heard Deputy Webster's remark and argues that he would have immediately responded in some manner

    to his colleague's serious issue. Respondent's testimony was credible.

23. Petitioner has failed to prove by clear and convincing evidence that Respondent intentionally lied to Inspector Vitek concerning Deputy Webster's statements.

24. Finally, pursuant to Subsection 943.1395(6), Florida Statutes (2002), Petitioner shall revoke an officer's certification if he/she pleads guilty or no contest to, or is convicted of any felony or misdemeanor involving perjury or a false statement. The section is not applicable to Respondent since he has not plead guilty or no contest to, nor been convicted of any crime.

RECOMMENDATIONS

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

RECOMMENDED that:

1. The allegations against Respondent are unfounded;

   
   

2. Respondent did not fail to maintain good moral character;

   
   

3. Respondent's certification be restored immediately.

DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2004.

COPIES FURNISHED:

Laurie B. Woodham, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

H. R. Bishop, Jr., Esquire 8738 Belarado Court Tallahassee, Florida 32311

Rod Caswell, Program Director Division of Criminal Justice

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

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

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: 04-000675PL

Orders for Case No: 04-000675PL