STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

TERRY L. MULLINS, )

)

Respondent. )

Case No. 04-3266PL

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding in Sanford, Florida, on October 28, 2004, and January 24, 2005, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Kristine R. Kutz, Esquire

200 East Robinson Street, Suite 200 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent failed to maintain good moral character by engaging in sexual conduct

while on duty as a police officer and making false statements under oath, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on June 18, 2004, and Respondent requested an administrative hearing. Petitioner referred the matter to DOAH to conduct the hearing.

During the two days of hearing, Petitioner presented the testimony of four witnesses and submitted six exhibits for admission into evidence. Petitioner's Exhibit 1 is a videotape from a security camera that Petitioner played during the hearing. Petitioner had ten days from the date of the first hearing to file a copy of Petitioner's Exhibit 1, but never filed the exhibit. Petitioner presumably retains custody of the exhibit. Respondent testified and submitted one exhibit for admission into evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the two-volume Transcript of the hearing filed on March 4 and 17, 2005. Respondent filed his Proposed Recommended Order (PRO) on February 7, 2005.

Petitioner filed its PRO on March 28, 2005.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for the certification and regulation of law enforcement officers in

   Florida. Petitioner certified Respondent as a law enforcement officer on April 3, 1987, pursuant to certificate number 38354.

2. During the fall of 2002, Respondent was employed as a police officer by the Sanford Police Department in Sanford, Florida. Respondent frequently conducted official business at a local Wal-Mart when Respondent was on duty and also visited the Wal-Mart for personal reasons when Respondent was off duty as a police officer. At the Wal-Mart, Respondent developed both a professional and personal relationship with Ms. Sheila Gill, a loss prevention employee at the Wal-Mart.

3. Respondent and Ms. Gill spoke frequently both in person and by telephone. Some of the telephone conversations between Respondent and Ms. Gill included sexual banter. When Respondent and Ms. Gill talked in person at the Wal-Mart, the two usually stood close to one another or arm-in-arm, exhibiting personal intimacy.

4. Respondent and Ms. Gill were sometimes together in the loss prevention office at the Wal-Mart when no one else was present. The loss prevention office has one door and no windows.

5. Security personnel at the Wal-Mart use the loss prevention office, in relevant part, to process individuals accused of shoplifting and to transfer the custody of accused shoplifters to police officers, including Respondent. At all

   times relevant to this proceeding, the loss prevention office was equipped with a closed-circuit television camera to permit Wal-Mart security personnel to monitor the loss prevention office and to provide a videotape record.

6. On October 13, 2002, Respondent and another police officer responded to a call from Wal-Mart security personnel regarding an accused shoplifter. After the other police officer left the loss prevention office with the accused, Respondent and Ms. Gill were alone in the office. They moved to an area of the office in which the video camera recorded only a portion of their actions. Respondent and Ms. Gill then engaged in sexual conduct at about 4:11 p.m., while Respondent was on duty for the Sanford Police Department.

7. On October 27, 2002, Respondent was on duty for the Sanford Police Department and was alone with Ms. Gill in the loss prevention office at the Wal-Mart. Ms. Tracy Harden was employed at the Wal-Mart as the Assistant Store Manager. Ms. Harden attempted to enter the loss prevention office in response to a complaint of a stolen wallet that Ms. Harden received from a customer. Ms. Harden found the door locked.

8. Ms. Harden unlocked the door, entered the loss prevention office, and observed Respondent and Ms. Gill alone together in the office. Respondent and Ms. Gill were sitting embraced and quickly separated when Ms. Harden entered the room.

9. Ms. Gill was not working at the Wal-Mart on October 27, 2002. After observing Ms. Gill in the loss prevention office with Respondent, Ms. Harden met with Ms. Gill to question her about her presence in the store that day and her conduct with Respondent. Ms. Harden suspended Ms. Gill and directed her to leave the store.

10. Ms. Harden retrieved the videotape from the security camera in the loss prevention office. However, she did not view the tape because she did not know how to operate the equipment. Ms. Harden locked the tape in the filing cabinet in her office and left work for the day.

11. When Ms. Harden arrived at the Wal-Mart the next day, she found the filing cabinet in her office dented and its lock broken. Upon examining the contents of the cabinet, Ms. Harden discovered the tape was the only item missing from the filing cabinet. Ms. Gill had taken the videotape from the filing cabinet and discarded it.

12. Ms. Harden complained to the Sanford Police Department about Respondent's behavior with Ms. Gill in the Wal-Mart loss prevention office on October 27, 2002. The Sanford Police Department conducted an internal investigation into the complaint.

13. The internal investigation included an interview with Respondent on November 7, 2002. Respondent made two false

    statements under oath. Respondent denied that, on October 27, 2002, Respondent was touching Ms. Gill or in close proximity to Ms. Gill in the loss prevention office. Respondent also denied ever touching Ms. Gill, hugging her, having any type of close physical contact with her, or engaging in any inappropriate or unprofessional conduct with Ms. Gill while Respondent was on duty for the Sanford Police Department.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004). DOAH provided the parties with adequate notice of the administrative hearing.

15. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. Petitioner satisfied its burden of proof. The evidence is clear and convincing that Respondent demonstrated a lack of good moral character defined in Florida Administrative Code Rule 11B-27.0011(4).

17. Respondent engaged in sexual conduct with Ms. Gill while on duty for the Sanford Police Department within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(c)5.

    Respondent then made two false statements under oath in an official proceeding that would constitute a felony irrespective of whether the felony is prosecuted criminally. § 837.02(1), Fla. Stat. (2002); Fla. Admin. Code R. 11B-27.0011(4)(a). See Melendres v. State, 739 So. 2d 1237 (Fla. 3d DCA 1999)(police internal affairs investigative interview is an official proceeding for purposes of Section 837.02, Florida Statutes (2002)).

18. Subsection 943.1395(7), Florida Statutes (2002), authorizes Petitioner to impose penalties for the foregoing acts that range from revocation to reprimand. Florida Administrative Code Rule 11B-27.005(5)(a) and (c) establishes guidelines for penalties pertaining to the foregoing offenses that range from suspension to revocation of Respondent's certificate.

19. Some mitigating factors support suspension of Respondent's certificate. Respondent has a long career with no previous discipline.

20. Some aggravating factors support a greater penalty.

    
    

    The acts committed by Respondent include two separate offenses separated by time.

21. False testimony by a licensee during an administrative hearing may also be considered as an aggravating factor in determining the appropriate penalty recommendation. Department of Law Enforcement, Criminal Justice Standards and Training

    Commission v. Martinez, Case No. 03-0058 (DOAH April 23, 2003); Department of Law Enforcement, Criminal Justice Standards and

    Training Commission v. Ellzey, Case No. 96-4207 (DOAH April 8, 1997).

22. Respondent provided false testimony during the administrative hearing. Respondent explained the video images of Respondent and Ms. Gill on October 13, 2002, as depicting Ms. Gill holding a mirror for Respondent while Respondent removed an ingrown hair from his collarbone. That testimony is belied by video images recorded on the security camera in the loss prevention office for the relevant date.

23. Respondent did not explain the reason for conducting the hair removal in the one area of the loss prevention office that was not completely within the scope of the security camera. The images recorded by the camera show enough to find that the couple engaged in kissing for some moments. Respondent remained facing Ms. Gill and in close proximity to her. The left leg of Ms. Gill is visible with her foot resting in an adjacent chair in a manner that is consistent with the leg straddling Respondent. The visible left leg and foot move rhythmically for some time. Thereafter, Respondent reenters full camera view to straighten and adjust his trousers. Ms. Gill enters the camera view to inspect herself in a mirror that was always available for Respondent to perform the claimed hair removal.

24. In this case, the appropriate penalty is revocation of certification. Aggravating factors support this recommendation.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character and revoking Respondent's certification.

DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 14th day of April, 2005.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Kristine R. Kutz, Esquire

200 East Robinson Street, Suite 200 Orlando, Florida 32801

Michael Crews, Program Director Division of Criminal Justice

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

Michael Ramage, 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 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: 04-003266PL

Orders for Case No: 04-003266PL