The Issue Whether the respondent committed the acts alleged in the Second Amended Administrative Complaint and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with licensing and regulating security officers. Section 493.6121, Fla. Stat. Currently and at all times material to this proceeding, Mr. Cooney held a Class “D” security officer's license. On January 1, 1996, Mr. Cooney was employed as a security officer with Navarro Security Services and was assigned to the “L-19” school board post. His immediate supervisor was Rodger Seide. Mr. Seide was a road supervisor for Navarro Security Services, and his duties included checking on and supplying equipment to security officers at their posts. On the night of January 1, 1996, Mr. Seide was told by the dispatcher at Navarro Security Services that Mr. Cooney needed a new battery for his radio. Mr. Seide took the battery to the L-91 post where Mr. Cooney was on duty. Mr. Seide saw Mr. Cooney approaching the car and “knew something was wrong.” Mr. Seide did not get out of his truck but rolled the window down a few inches so he could hand Mr. Cooney the battery. Mr. Cooney stuck his head in the window and said he would yank off Mr. Seide's badge and slit his throat if Mr. Seide did not give him the battery. Mr. Seide immediately left the post and called his supervisor, Melvin Lee. Mr. Lee told Mr. Seide to go back and talk with Mr. Cooney, but Mr. Seide refused, telling Mr. Lee that he felt threatened by Mr. Cooney and that the L-91 post was dark and isolated. Mr. Lee met Mr. Seide at the side of the school identified as post “L-91,” and they drove to the post in Mr. Seide’s truck. When Mr. Cooney saw Mr. Seide, he charged the truck in an aggressive manner. As soon as he saw Mr. Lee, however, he stopped and acted normally. Mr. Cooney was terminated by Navarro Security Services on January 10, 1996. The proof is sufficient to establish that, on January 1, 1996, while Mr. Cooney was on duty as a security officer, he verbally threatened his supervisor with physical harm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order dismissing Count I of the Second Amended Administrative Complaint and finding John J. Cooney guilty of violating section 493.6118(1)(f), Florida Statutes, suspending his Class “D” security officer's license for a period of one (1) month, and placing him on non-reporting probation for a period months following the suspension. of six (6) DONE AND ENTERED this 18th day of March, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1997. COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 John J. Cooney 4771 Northwest 10th Court Plantation, Florida 33313 Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Respondent, the holder of a Class "D" Security Officer License and a Class "G" Firearm License, committed the misconduct alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the holder of Class "D" Security Officer License D92-01223 and Class "G" Statewide Firearms License G96-01346. At the times pertinent to this proceeding, Respondent was employed as an armed security guard for Wells Fargo Security in Palm Beach County, Florida. His assigned post was at the Community Savings Bank (the Bank) in Riviera Beach, Florida. There was typically only one guard assigned to that post. The Bank is located in a high crime area of Riviera Beach. Respondent was the only guard assigned to the Bank on June 5, 1996. Respondent was on duty at the Bank from 7:00 a.m. to 7:00 p.m., five days a week. He was to provide security for all five floors of the main bank building, an adjacent single story building that contained supplies, and the parking areas. His duties included escorting Bank personnel and customers between the parking areas and the Bank, and he was required to carry a radio so that Bank personnel could contact him when someone needed an escort. The radio he carried had a radius of 1.5 miles. At the times pertinent to this proceeding, Michael Ross was employed by Wells Fargo and had direct supervisory authority over the Respondent. Mr. Ross instructed Respondent that he could leave the Bank premises only to pick up a sandwich. He was instructed to take his breaks and eat his lunch on Bank premises. On June 5, 1996, Respondent was on duty at the Bank. At approximately 11:00 a.m. that day, Mr. Ross spoke with Sheila Owens, the bank's operation manager, in an effort to locate the Respondent. Mr. Ross wanted to discuss with the Respondent certain changes in the work schedule. Ms. Owens advised Mr. Ross that she would attempt to locate Respondent and that she would call him back. A few minutes later, Ms. Owens called Mr. Ross and told him that she could not locate Respondent. Mr. Ross became concerned that the post was unattended. Because the Bank is in a high crime area, he was also concerned that the Respondent may have become the victim of an act of violence. Mr. Ross drove to the Bank, arriving at approximately 12:30 p.m. on June 5, 1996. He and Ms. Owens searched the entire Bank premises. Mr. Ross attempted to contact Respondent by radio and by Respondent's personal beeper number. The page Mr. Ross left for Respondent was not returned. Mr. Ross tried to locate the Respondent for approximately two hours. He called the Riviera Police Department because he feared for Respondent's safety. Two Riviera Police Department cars arrived at the scene at approximately 2:30 p.m. on June 5, 1996. About the time the police arrived, Mr. Ross saw Respondent walking through the Bank's parking lot. Respondent told Mr. Ross that he had been at a beeper store that was approximately 200 yards from the Bank. That explanation is not credible because Respondent could have been contacted by radio if he had been within a mile and a half of the Bank. Respondent was absent from his post without credible explanation for at least two hours on June 5, 1996. Wells Fargo thereafter lost the security contract it had with the Bank.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class “D” Security License be revoked. It is further recommended that no action be taken against Respondent's Class "G" Statewide Firearm License. DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997 COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Mr. James B. Brown 1031 West 1st Street Riviera Beach, Florida 33404 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether Petitioner's application for licensure as a yacht salesperson should be granted.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a 47-year old resident of Hollywood, Florida. He is married and has a five-year old step-daughter. His wife's father is the minister of the First Methodist Church in Hollywood. Petitioner is an active member of his father-in-law's church. In recent years, he has volunteered a significant amount of his time to perform tasks on behalf of the church. Petitioner is now, and has been since June of 1997, employed as a salesperson by Rex Yacht Sales (Rex) in Fort Lauderdale. As a salesperson for Rex, he sells new boats and he also sells used boats that are 32 feet or less in length.3 Approximately, 75 percent of the sales he makes are of used boats. Petitioner specializes in the sale of sailboats. He possesses a considerable amount of knowledge concerning sailboats as a result of the years (since he was a young child) that he has devoted to sailing. Petitioner owned, lived aboard, and captained a sailboat named the "Wave Dancer" from 1975 until the late 1980's. He acquired the "Wave Dancer" in return for his participation in an illicit drug smuggling operation. In 1975, when he was still living in his hometown of Port Washington, New York, Petitioner was approached by a childhood friend, Dan Locastro. Locastro advised Petitioner that he (Locastro) and his associates wanted to buy a sailboat to use to transport marijuana from St. Thomas in the Virgin Islands to the New England coast. Locastro promised Petitioner that, if Petitioner were able locate a sailboat for them to purchase and if he thereafter successfully captained the newly purchased sailboat on its journey to and from the Virgin Islands, Petitioner could keep the sailboat. Approximately a month later, Petitioner notified Locastro that he had located a sailboat for Locastro and his associates. The sailboat was the "Wave Dancer." Locastro and his associates subsequently purchased the "Wave Dancer." They purchased the boat in the name of Richard Harrison. Following the purchase of the "Wave Dancer," Petitioner, accompanied by Locastro, sailed the boat to an island near St. Thomas. There, 500 pounds of marijuana were loaded onto the "Wave Dancer." Petitioner then sailed the boat to the New England coast, where he delivered the marijuana. Petitioner participated in this illicit smuggling operation because he wanted his own sailboat. He was neither arrested, nor charged, for having participated in this operation. As promised, Petitioner was allowed by Locastro and his associates to keep the "Wave Dancer" after the conclusion of operation. The boat was subsequently titled in Petitioner's name. For approximately 12 or 13 years, Petitioner (who was then single) lived in the Caribbean aboard the "Wave Dancer." He earned a living by taking tourists (usually one couple at a time) out in the water on his boat. In the late 1980's, Petitioner decided to return to the United States to live with and care for his parents, who, because of their advanced age, required his assistance. Before moving back to the United States, Petitioner put the "Wave Runner" up for sale. He was unsuccessful in his efforts to sell the boat. He discussed with a friend of his, Ken Fish, the possibility of Fish purchasing the boat for $50,000.00, but no sale was consummated. Petitioner was still the owner the "Wave Runner" when he flew to the United States and moved in with his parents (in their home). He left the "Wave Runner" behind in the Virgin Islands in the care of his friend Fish. Approximately nine months after he left the Virgin Islands, Petitioner received a telephone call from Fish, who indicated that he was having financial difficulty and that he wanted to use the "Wave Runner" in a "marijuana scheme." Approximately six months later, Fish again telephoned Petitioner. This time he told Petitioner that he wanted "to do a cocaine smuggling venture with [the "Wave Runner]." At first, Petitioner told Fish that he (Fish) was "out of his mind." Later during the conversation, however, Petitioner relented and agreed to allow Fish to use the "Wave Runner" in the proposed "cocaine smuggling venture." Petitioner gave his permission without receiving any promise from Fish that he (Petitioner) would receive anything in return. The "cocaine smuggling venture" was unsuccessful. The "Wave Runner" was seized by authorities in Martinique. In the spring of 1991, in United States District Court for the Southern District of Florida Case No. 91-349-CR- HIGHSMITH, Petitioner was criminally charged by the United States government for his role in the "cocaine smuggling venture" with conspiracy to import cocaine into the United States. Petitioner's role in the "cocaine smuggling venture" was limited to permitting Fish to use the "Wave Runner" to transport cocaine into the United States. After his arrest in May of 1991, Petitioner agreed to, and he subsequently did, cooperate with federal authorities by participating in federal undercover drug enforcement operations under the supervision of federal agents. At times during these operations, he was required to place himself in situations where his personal safety was compromised. In or around January of 1994, pursuant to a plea agreement, Petitioner entered a plea of guilty in United States District Court for the Southern District of Florida Case No. 91- 349-CR-HIGHSMITH to one count of conspiracy to import cocaine. On January 30, 1995, Petitioner was adjudicated guilty of said crime and, as punishment, placed on probation for five years and fined $17,500.00. Such punishment constituted a substantial downward departure from the range provided in the United States Sentencing Guidelines. At the sentencing hearing, the sentencing judge explained that he was "constrained to substantially modify the sentence in this case downward" because of the risks Petitioner had taken to assist federal authorities in their drug-fighting efforts. Although under no legal obligation to do so, Petitioner continued to provide similar assistance to federal authorities (at a substantial personal risk) after his sentencing. In September of 1996, Petitioner filed with the Department an application for licensure as a yacht salesperson. Question 13 on the application form read as follows: CRIMINAL HISTORY: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the law of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. Yes No The application form instructed those applicants whose answer to Question 13 was "Yes" to "attach [their] complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or [were] pending." On the application form that he submitted to the Department, Petitioner answered "Yes" to Question 13, but he did not attach the required signed statement. He merely appended to the application form a copy of the judgment entered in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On or about October 1, 1996, the Department sent the following letter to Petitioner: The Department of Business and Professional Regulation, Section of General Regulation is in receipt of your application for a yacht Salesman. A review of your application has disclosed the following deficiencies: You answered Yes to question 13 which asked "Have you been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld?" The paragraph under question 15 further states "If your answer to question 13, 14, 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." You will need to submit a signed statement of the charges and facts, within twenty-one (21) days to this office before your application can be checked for form. Should you have any questions, please contact me. After receiving the Department's October 1, 1996, letter, Petitioner telephonically requested additional time to respond. By letter dated December 13, 1996, Petitioner's attorney, John J. Lynch, Esquire, responded on Petitioner's behalf to the Department's October 1, 1996, letter. Lynch's letter, which was received by the Department on December 17, 1996, read as follows: I represent the Applicant, Richard E. Parker. In response to concerns raised by Richard Parker's application's disclosure of charges and crimes and the results thereof, please consider the following as part of the application process: The subject matter was limited to involvement in a conspiracy to import controlled substances. Mr. Parker voluntarily entered a guilty plea in the U.S. District Court, Southern District of Florida, Miami, Florida, in an action entitled, "United States v. Richard Parker" Criminal No. 91-349-CR- Highsmith. Upon being aware of potential liability, he cooperated fully with the U.S. Government. During a four-year period, he provided extensive assistance to the U.S. Government in ongoing investigations and provided training and resources to special agents. Mr. Parker's participation as a Government agent put him at considerable risk. His case remains under court seal to protect information which may be used by the Government in future criminal prosecutions. I cannot provide a complete transcript of the court proceedings without jeopardizing Mr. Parker's safety. To appreciate Mr. Parker's significant assistance to the U.S. Government, a portion of the Honorable Judge Highsmith's sentencing comments has been enclosed. Pages 11, 12, 14 and 15 of the sentencing memorandum specify the efforts made by Mr. Parker, and recognized by the Court to rectify his prior conduct. (Note: All individuals, other than Mr. Parker, have been redacted to preserve a measure of safety since the matter remains under court seal). In recognition of [his] assistance, Mr. Parker was placed on probation for five years and fined on January 30, 1995. The fine was paid and probation has commenced. I trust this supplemental response answers concerns regarding this unfortunate episode in Mr. Parker's life. As his attorney asserted in the foregoing letter, as of the date of the letter, Petitioner had paid the $17,500.00 fine imposed in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On January 17, 1997, the Department issued its Notice of Intent to deny Petitioner's application for licensure. On February 12, 1997, Petitioner requested a Section 120.57(1) hearing on the matter. On August 12, 1997, Petitioner filed a motion in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH requesting that "his period of probation [be reduced] from a term of 60 months to a term of 32 months thereby terminating his probation on September 30, 1997." In support of his motion, he stated the following: On January 30, 1995, Richard Parker was sentenced by this Court to five years probation for his participation in a cocaine conspiracy. The Court imposed this lenient sentence because of the extraordinary cooperation Richard Parker had rendered (a transcript of the sentencing is attached hereto as Exhibit A). As part of his cooperation Parker had gone to Columbia in a sailboat, at great personal risk and with no protection from law enforcement, and developed a case involving significant arrests, convictions, and seizure of cocaine. Since sentencing Parker has remarried and complied with all terms of probation. Parker had promised the agents and the Court that his cooperation would continue regardless of the sentence imposed by the Court. True to his word, following sentencing, at the request of the DEA, Richard Parker traveled alone to Columbia and negotiated the location in the Caribbean Sea for an air drop of 300 kilos of cocaine. Parker then captained a sailboat and traveled to Dominica and Barbados, St. Kitts and the British Virgin Islands with DEA agents on board and participated in the recovery of the 300 kilos of cocaine as it was dropped from a plane in 50 kilogram packages. Parker received no payment for this cooperation. Parker rendered substantial assistance to the Government after sentencing because of his moral commitment to cooperation as a form of restitution, because of his sense of obligation and gratitude, and because he had given his word to the Government and this Court. It is now over 2 1/2 years since Parker was sentenced. Parker has complied fully with all conditions of probation. Parker has committed himself to building a productive law-abiding life. The Count may well recall that Parker's marriage ended during his cooperation and sentence. Parker has recently married again becoming the father of a four-year old in the process. Parker has spent his life working on and sailing boats. Parker has applied to the State of Florida for a license to be a yacht salesman. The issuance of these licenses in Florida is regulated by the Department of Business and Professional Regulation (DBPR). The DBPR has denied Parker's request for a license citing Parker's conviction as irrefutable proof of moral turpitude as a basis for denial. Parker has petitioned for review and a hearing before an administrative law judge is scheduled for October 14, 1997. Undersigned counsel has been advised that the hearing scheduled for October 14, 1997, will be the final hearing regarding Parker's petition for a license to sell boats in the State of Florida. Regarding this issue, undersigned counsel has become aware of an administrative decision where an application for a license as a yacht and ship salesman was granted by DBPR to an applicant who had been convicted of a drug felony, sentenced to probation and had been terminated from probation. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes v. Orr, Docket No. YS95025 (Final Order No. BPR-95-03991, 7/20/95). It is respectfully submitted that evidence of successful completion of probation by Parker prior to the time of final hearing on October 14, 1997, will either result in the DBPR rescinding their denial of Parker's application or a reversal of DBPR's denial by the administrative law judge. Assistant United States Attorney John Schlessinger has conferred with the United States Probation Officer Anthony Gagliardi regarding this motion and has authorized undersigned counsel to state that the United States has no objection to a reduction of probation from 60 months to 36 months. Richard Parker has applied to the State of Florida for a yacht salesman license so that he can support himself and his family. Richard Parker, through his cooperation, has rebutted any presumption of moral turpitude that attached to his conviction and has affirmatively and courageously demonstrated good moral character; Richard Parker has honored and will continue to honor his pledge to the United States and to this Honorable Court never to break the law again. . . . The Final Order in the Orr case, which was referenced in Petitioner's Motion to Modify Probation, contained the following "findings of fact" and "conclusions of law":
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Petitioner's application for licensure as a yacht salesperson. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1997.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.
Findings Of Fact Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 this 8th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner. Paragraphs 1 through 6: Accepted. Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.) Findings submitted by Respondent. (None.) COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Gerald Brown 3551 N.W. 41st Street Lauderdale Lakes, Florida 33309 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether on or about January 22, 1996, Respondent, Fidel DeLeon, did unlawfully attempt to commit a sexual battery upon Diane Smalley, a person twelve years of age or older, without the consent of Diane Smalley, by attempting to penetrate her vagina with his penis or by attempting to place his penis in union with the vagina and/or mouth of Diane Smalley, and in the process thereof used physical force and violence not likely to cause serious personal injury. Whether Respondent violated the provisions of Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code, in that the Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers in the State of Florida have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer in Florida by the Criminal Justice Standards and Training Commission on December 7, 1990, and was issued certificate No. 113130. Respondent was employed with the Orange County Sheriff's Office on May 9, 1994. Respondent served as a road deputy during the relevant time-period, working the midnight shift. Dianne Smalley was born on January 7, 1953, and is a person twelve years of age or older. Smalley was employed by the Maitland Police Department as a dispatcher in January 1996, and worked the midnight shift. Smalley met and became acquainted with Respondent approximately a month prior to January 22, 1996. On January 21, 1996, Respondent and Smalley made plans to get together socially after Respondent got off duty. On January 22, 1996, at about two o'clock in the morning, Respondent went to the residence of Smalley and was invited in. When Respondent arrived at Smalley's residence, he was wearing his police uniform, which included a holstered gun. Respondent and Smalley socialized for about 30 minutes while in the residence. During the course of their conversation, Respondent told Smalley that he was married. After telling Smalley he was married, Respondent was asked to leave by Smalley. Respondent did not leave Smalley's residence at that point, but instead Respondent moved closer to Smalley who was sitting on the couch. Respondent pushed Smalley back on the couch, however, Respondent moved forward and kissed her on her neck. Respondent also rubbed his hands all over the body of Smalley. Smalley pushed away Respondent and told him that nothing was going to happen. She got up and walked toward the front door, expecting Respondent to leave. As Smalley moved from the dining room toward the front door, Respondent came up behind her and pushed Smalley back into the living room to where her body was bent forward over the arm of the couch. Respondent stood behind Smalley and, as she was bent over the couch, Respondent held her down by holding her arms and with the weight of his body. Respondent then tried to pull her pants down and pull up her shirt. Respondent unzipped his pants and pulled out his penis. Respondent rubbed his genitals against Smalley's posterior and placed his penis between her legs. Respondent simulated intercourse with Smalley. Respondent tried to put Smalley's hand on his penis but she resisted. Respondent asked Smalley to perform oral sex on him but she refused. Respondent tried to push Smalley's body down to perform oral sex on him, but was unable to because she locked her knees. Respondent then masturbated himself in Smalley's living room and ejaculated on the carpet in the living room. Respondent then let Smalley go and left the residence. During the course of the day, Smalley reported the incident to her roommate. Later that day, Respondent called Smalley on the telephone and apologized for what had happened. Smalley called the Orange County Sheriff's Office after viewing a news broadcast where a rape suspect, who looked similar to Respondent, had gained access to the victim's home by using a police ID. Smalley did not identify herself fully to Detective Volkerson, but identified Fidel DeLeon as a possible suspect because of what he had done to her. Through Respondent's telephone records, detectives were able to identify Smalley as the caller. An investigation was initiated and Smalley cooperated with law enforcement. During the investigation, Respondent gave investigators false and misleading statements. Following the internal investigation, Respondent was terminated from the Orange County Sheriff's Office on August 29, 1996. During the course of the investigation of this matter from January through August 1996, there was insufficient evidence of misconduct by law enforcement which would negate the integrity of the investigation into this matter. Smalley's testimony at the formal hearing was credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order which finds: Respondent guilty of committing attempted sexual battery on January 22, 1996; that Respondent failed to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that law enforcement officers have good moral character; and revoke the certification of Respondent to be a law enforcement officer in the State of Florida. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of February, 1999. COPIES FURNISHED: Karen Simmons, Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Fidel DeLeon 381 Lake Park Trail Oviedo, Florida 32765 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he used his law enforcement badge and credentials to misrepresent himself as acting in a formal law enforcement investigative capacity, when he was actually engaged in a private matter. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by the parties Respondent David A. Thomasun (hereafter "Thomasun") holds auxiliary law enforcement certificate number 01-6739, issued by the Criminal Justice Standards and Training Commission on October 16, 1979, and holds law enforcement certificate number 03-84-002-03, issued by said Commission on November 5, 1984. On June 27, 1988, at approximately 6:30 p.m., Thomasun entered the Broward General Medical Center for the purpose of photographing an individual named Phillip Ambrose, who, unknown to Thomasun at the time, had shortly before been arrested by the Pompano Beach Police Department, and subsequently had been taken to the Medical Center by the Pompano Beach Police for further examination. Thomasun was then an auxiliary special agent with the Florida Department of Law Enforcement, but was not on duty at the time he entered the Medical Center. He had not been authorized or requested by the Florida Department of Law Enforcement (FDLE), the Pompano Beach Police Department, or any law enforcement agency to photograph Ambrose for any purpose. Thomasun had been hired by a personal injury attorney to take photographs of Ambrose, who was the attorney's client, at the Medical Center. Thomasun had no reason for being in the Medical Center other than to take said photographs for said attorney. Thomasun approached Pompano Beach Police Officer Scott Winters, who was guarding Ambrose, and after Officer Winters searched his camera bag and his pockets, and viewed other personal identification such as his driver's license, Thomasun displayed to Officer Winters his FDLE auxiliary special agent credentials, consisting of a black leather case containing two identification cards, one with a photograph, and a badge attached and visible on the exterior of the case. Said credentials identified Thomasun as an auxiliary special agent with FDLE. Shortly afterward, Officer Winters left the immediate area to make some telephone calls, without permitting Thomasun to take any photographs of Ambrose. Thomasun then departed without taking any photographs. On the following day, June 28, 1988, Thomasun related his account of the incident of the preceding day to his immediate supervisor, Special Agent Joyce Dawley, and to Assistant Chief of Regional Operations Harry Solowsky and Special Agent Supervisor George Vilardi. Thomasun was terminated from his position as auxiliary special agent with FDLE on June 28, 1988. Facts established by evidence at hearing Thomasun's termination from his position as an auxiliary special agent with FDLE was based on the information gathered by FDLE du ring the course of its investigation of the incident on June 27, 1988, at Broward General Medical Center. 2/ Thomasun's stated purpose for going to the hospital room on June 27, 1988, constituted, by his own admission, a direct conflict of interest with his duties as an auxiliary law enforcement officer. Shortly after realizing that the situation in the hospital room represented a conflict of interest, Thomasun left the hospital room. At all times material to this proceeding, auxiliary special agents of the FDLE were subject to the provisions of Procedural Order 87-2. Section I.C. of that procedural order read as follows: FDLE auxiliary special agents are authorized to function as regular law enforcement officers only during specific tours of duty and investigative situations. When off duty, the auxiliary special agent may only act in the capacity of a private citizen. Auxiliary special agents can only function as regular law enforcement officers when under the direct control and supervision of a full-time special agent of the Florida Department of Law Enforcement. Section VI.A.3. of Procedural Order 87-2 read as follows: Although the display of credentials will only be permitted while in an on-duty status in the company of a full-time sworn agent, the auxiliary special agent will be permitted to keep his/her credentials while in off-duty status provided they do not display or attempt to exercise official powers unless in an on-duty status. Thomasun was thoroughly familiar with the above-quoted provisions of Procedural Order 87-2.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Administrative Complaint. DONE and ENTERED this 2nd day of March 1992, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1992.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 18, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers. Section 943.12(3), Florida Statutes (1997). Ms. Gilbert was certified by the Commission as a law enforcement officer on March 12, 1993, and was issued Law Enforcement Certificate No. 136544. On July 1, 1994, Ms. Gilbert was employed as a sworn law enforcement officer by the Metro-Dade Police Department. On July 1, 1994, Officer William Romero was employed by the Metro-Dade Police Department as a law enforcement officer. He was first employed on March 29, 1993, and was still on probation on July 1, 1994. He was working as a uniform patrol officer, and, at the time of the incident in question, he was working alone. On the evening of July 1, 1994, a black female flagged down Officer Romero while he was patrolling the neighborhood. When Officer Romero stopped, she told him that an elderly, Hispanic male was in the vicinity armed with a handgun. Officer Romero promptly confronted the person pointed out by the black female and told him to turn around. When the man did so, Officer Romero saw a revolver sticking out from the waistband of the man's trousers. Although the gun was not in the man's hand at the time, Officer Romero immediately drew his firearm and told the man to put his hands up. The man did not respond but continued to talk with very slurred speech, and he appeared intoxicated to Officer Romero. After a few moments, the man grabbed the revolver in his waistband, but it stuck, and he was not able to remove it. Officer Romero overpowered the man, and they fell to the ground and wrestled. Officer Romero was able to remove the gun from the man's waistband, and he threw it onto a nearby grassy area. Officer Romero handcuffed the man and picked up the gun. He opened the cylinder of the revolver and saw that there were no bullets in the cylinder. Officer Romero took the gun back to his patrol car, and put the suspect in the car as well. Officer Romero then called fire rescue because the man was elderly and intoxicated, and Officer Romero was concerned because they had wrestled for what seemed like several minutes. Officer Romero did not speak with the black female who had flagged him down after she initially told him about the man with the gun, nor did he interview any other persons in the area. Lieutenant Kevin Lindahl arrived on the scene immediately after Officer Romero placed the suspect in the patrol car. Officer Romero explained the situation to Lieutenant Lindahl, showed him the suspect's handgun, and specifically told him that the gun was unloaded during his altercation with the suspect. When he showed the gun to Lieutenant Lindahl, the cylinder was open, and it was obvious that there were no bullets in the gun. Lieutenant Lindahl left the scene a short time after he arrived. As Lieutenant Lindahl was leaving the scene, then- Officer Gilbert and Officer Willie McFadden arrived. These officers were the primary unit assigned to the call. At the time of the July 1, 1994, incident, Officer McFadden was on probation as a new law enforcement officer, and Officer Gilbert had recently completed her probation. They were assigned to the same squad but were not routinely assigned to work together. When they arrived at the scene, both Officer McFadden and Officer Gilbert approached Officer Romero as he sat on the driver's side of his patrol car. Officer Romero told them what happened after he was flagged down; Officer Gilbert and Officer McFadden were both privy to Officer Romero's remarks.2 Officer Romero gave the suspect's revolver either to Officer McFadden or to Officer Gilbert. Officer McFadden asked Officer Romero whether the gun was loaded. Officer Romero responded that the gun was not loaded, and Officer McFadden examined the gun and confirmed that the cylinder was open and that there were no bullets in the cylinder. Both Officer Gilbert and Officer McFadden understood Officer Romero's statement that the gun was not loaded to refer to the time during which Officer Romero and the suspect struggled over possession of the gun, when Officer Romero took the gun from the suspect. Officer Romero turned the suspect over to Officer Gilbert and Officer McFadden and then left the scene. Officer Romero sought out and spoke with his acting sergeant, Officer Sandra Leon. He told her about the incident and advised her that Lieutenant Lindahl had appeared at the scene. During this conversation, Officer Romero told Officer Leon that there were no bullets in the gun. It was important to him because he was a rookie police officer and the July 1 incident was the first time he had confronted an armed suspect; he was nervous because he almost shot the suspect. Officer McFadden spoke with several witnesses at the scene who told him that the suspect's revolver had been loaded at some point during the afternoon and that the bullets had been removed from the gun. He was also told that the suspect had put the gun to someone's head and pulled the trigger twice but that the gun did not discharge. Officer McFadden "asked around for the bullets; no one could give me the bullets. And I immediately said then the gun is unloaded, we can't find any bullets."3 None of the witnesses Officer McFadden interviewed told him that the suspect had discharged the gun before Officer Romero arrived. Officer McFadden did not interview witnesses in the house in front of which the altercation took place. Rather, he stayed with the suspect while Officer Gilbert went into the house and spoke with several witnesses. She was told by Brenda Smith, the woman who had flagged down Officer Romero, that, earlier in the afternoon, the suspect had discharged the firearm into the air outside the house. Ms. Smith also told Officer Gilbert that the suspect entered the house after discharging the gun, pointed the gun at her and another person in the house, and pulled the trigger twice; the gun did not fire but just clicked when the hammer fell. Officer McFadden and Officer Gilbert stayed at the scene about 30 or 40 minutes. They discussed the offenses with which to charge the suspect and began preparing the required paperwork, which consisted of the arrest affidavit, the offense/incident report, and the property receipt. During the discussion at the scene, Officer McFadden raised the possibility of charging the suspect with the offense of "using a firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances" (hereinafter "using a firearm while under the influence"), a crime defined in Section 790.151, Florida Statutes (1993), and identified as a first degree misdemeanor. Officer McFadden looked up the offense in the police manual setting forth crimes and their elements.4 The focus of discussion between Officer Gilbert and Officer McFadden was the statutory requirement that the firearm be loaded; they did not discuss whether the charge was appropriate in light of the fact that the offense was a misdemeanor. Officer McFadden and Officer Gilbert continued discussing the offense of using a firearm while under the influence as they drove the suspect to the Dade County Jail and as they completed the arrest affidavit, which they did while sitting in the patrol car in the jail parking lot. Officer Gilbert told Officer McFadden during this discussion that a witness had told her that the suspect had discharged the gun earlier in the afternoon, before Officer Romero arrived on the scene. Officer Gilbert believed that it was appropriate to charge the suspect with this offense because he was intoxicated and because she had been told that the gun had been discharged during the afternoon. Since she had been told that the gun had been discharged, Officer Gilbert reasoned that the gun had been loaded at some point during the afternoon, a fact which was corroborated by the witness statement given to Officer McFadden. Officer Gilbert and Officer McFadden agreed to charge the suspect with the offense of using a firearm while under the influence.5 Officer Gilbert filled out the arrest affidavit in the jail parking lot, in Officer McFadden's presence. She included the charge of using a firearm while under the influence, and she inserted the phrase "since the gun was loaded" into the narrative portion of the arrest affidavit, squeezing it in at the end of one line of printing as she was editing and completing the affidavit. As revised, the narrative in the completed arrest affidavit contains the following sentence: "V-01 advised that he and V-02 was in fear of their life being taken [when the suspect pointed the gun at them and pulled the trigger] since the weapon was loaded." Officer Gilbert did not mention in the arrest affidavit narrative that the witness Brenda Smith had told her that the suspect had discharged the revolver earlier in the afternoon. Before they left the patrol car, Officer Gilbert and Officer McFadden signed both pages of the affidavit, attesting by their signatures that "I swear that the above Statement is correct and true to the best of my knowledge and belief."6 The offenses set forth in the arrest affidavit when Officer Gilbert and Officer McFadden signed it in the parking lot of the jail were aggravated assault, discharging a firearm in public,7 carrying a concealed firearm, resisting arrest, and using a firearm while under the influence. Probable cause existed to arrest the suspect regardless of whether the offense of using a firearm while under the influence was properly charged. Although Officer McFadden had searched the suspect at the scene, he was searched again by the corrections officers at the jail. This search produced a knife and six bullets, which were found in the suspect's clothing. Officer Gilbert was told that these items were on the suspect's person, and, based on the information that the suspect was carrying a knife, she added to the arrest affidavit the charge of carrying a concealed weapon. Officer McFadden was aware that Officer Gilbert added the concealed weapon charge, which he considered an appropriate charge under the circumstances. The arrest affidavit was turned in at the jail. Officer McFadden completed the first page of the required offense/incident report at the station, after he and Officer Gilbert left the suspect at the jail.8 He included the charge of using a firearm while under the influence, and he cited the charge to Section 790.151, Florida Statutes. Officer McFadden claimed that he was not aware that he had included that offense in the report, that he was simply copying the information from the arrest affidavit completed by Officer Gilbert without thinking about what he was writing.9 At some point, Officer McFadden stopped working on the offense/incident report and began completing the property report. While Officer McFadden was preparing the property report, Officer Gilbert completed the narrative portion of the offense/incident report. Although Brenda Smith was listed in the report as a witness, Officer Gilbert did not mention in the narrative that Ms. Smith had reported that the suspect had discharged the gun during the afternoon, nor did she include in this narrative any statement regarding whether the gun was loaded or unloaded. Officer Gilbert cannot explain these omissions. As acting sergeant and the supervisor of Officer McFadden and Officer Gilbert on July 1, 1994, Officer Sandra Leon was responsible for reviewing the offense/incident report at issue in this proceeding and ensuring that all of the information provided was complete and correct. Officer Leon reviewed the offense/incident report on the evening of July 1, 1994, and she noticed that the offense of using a firearm while intoxicated was included in the report. She was not familiar with this offense, so she looked up the statute defining the offense. She noted that an element of the offense was that the firearm be loaded, and she remembered that Officer Romero had told her that the gun was not loaded when he struggled with the suspect. Nonetheless, without speaking with either Officer McFadden or Officer Gilbert, Officer Leon signed the offense/incident report and forwarded it through channels pursuant to the usual procedures. At the time she signed the report, Officer Leon knew that the narrative did not include all of the elements of the offense of using a firearm while under the influence, and she recalled that Officer Romero had told her that the gun was not loaded at the time he arrested the suspect. The next day, in a brief encounter, Officer Leon "casually" asked Officer Gilbert whether the gun was loaded.10 According to Officer Leon, Officer Gilbert responded affirmatively, and Officer Leon did not pursue the matter any further with Officer Gilbert. Officer Leon and Officer Gilbert did not engage in a conversation regarding the offense/incident report, and Officer Leon asked Officer Gilbert only the one question. Shortly after she spoke with Officer Gilbert, Officer Leon spoke with Officer McFadden about the condition of the gun because he had also signed the offense/incident report. According to Officer Leon, Officer McFadden appeared "visibly upset" during this conversation, and Officer Leon attributed this to the fact that, because he had signed the offense/incident report, he and Officer Gilbert were "equally at fault."11 Officer McFadden told Officer Leon that the gun was not loaded. Finally, Officer Leon spoke again with Officer Romero, who confirmed that the gun was not loaded when he took it from the suspect. Four or five days later, Officer Leon brought the matter to the attention of Lieutenant Lindahl, who had taken several days off from work after the July 1 incident. Officer Leon went to Lieutenant Lindahl because, even though she had signed and submitted the offense/incident report, she was concerned that there was a problem with charging the suspect with the offense of using a firearm while under the influence. Officer Leon told Lieutenant Lindahl that she had asked Officer Gilbert about the condition of the gun and that Officer Gilbert told her that it was loaded. Lieutenant Lindahl then had a copy of the arrest affidavit sent to his office via facsimile.12 Lieutenant Lindahl reviewed the arrest affidavit and questioned Officer Romero and Officer McFadden about the condition of the gun. Officer Romero reiterated his story that the gun was not loaded when he took it from the suspect. Officer McFadden told Lieutenant Lindahl that he had told Officer Gilbert repeatedly that the charge of using a firearm while under the influence was improper because the gun was not loaded, but he did not tell Lieutenant Lindahl that Officer Gilbert had told him that a witness reported that the suspect had discharged the gun before Officer Romero arrived at the scene. Lieutenant Lindahl did not ask Officer Gilbert why the charge of using a firearm while under the influence was included on the arrest affidavit and in the offense/incident report. Rather, he decided it was appropriate to refer the matter to the police department's internal affairs section, and he promptly filed a complaint against Officer Gilbert.13 Lieutenant Lindahl based his decision to file the complaint against Officer Gilbert on the statements of Officer Romero and of Officer McFadden. Lieutenant Lindahl concluded that Officer Gilbert included the charge of using a firearm while under the influence in the arrest affidavit even though she knew that the gun was not loaded and that this was an essential element of the offense. Lieutenant Lindahl testified that, if the gun had in fact been discharged, the charge of using a firearm while under the influence "would have been appropriate."14 Lieutenant Lindahl did not speak with Officer Gilbert after he filed the complaint because she was the subject of an internal affairs investigation, and it would have been improper for him to interfere in the investigation by talking with her. It is not unusual for arresting officers to charge a suspect with an offense when all of the elements of the offense are not present. If a charge included in an arrest affidavit is not appropriate, the responsible police officers bring it to the attention of the assistant state attorney handling the case, who sees that the unsupported charge is stricken from the arrest affidavit. When Officer McFadden and Officer Gilbert met with the assistant state attorney at what is called the "prefile conference" to discuss the arrest on July 1, 1994, they asked the assistant state attorney whether, in his opinion, the charge of using a firearm while under the influence should be stricken from the arrest affidavit because the gun was not loaded. The assistant state attorney reviewed the statute and concluded that the charge should be dropped. On October 20, 1994, Officer Gilbert gave a sworn statement to the internal affairs investigator for the Metro-Dade Police Department. In that statement, Officer Gilbert testified that she overheard Officer Romero state that the gun was unloaded at the time of the altercation; that she and Officer McFadden agreed to charge the suspect with using a firearm while under the influence; that the charge and the phrase "since the gun was loaded" were on the arrest affidavit before Officer McFadden signed the affidavit; and that she never spoke with Officer Leon about the offense/incident report. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert knowingly made a false statement that was intended to mislead when she included in the arrest affidavit the offense of using a firearm while under the influence and inserted in the affidavit the phrase "since the gun was loaded." Rather, based upon the consideration of all of the evidence presented herein and upon the assessment of the credibility of the witnesses, the persuasive evidence supports the finding that Ms. Gilbert acted in good faith when she included the charge and the phrase "since the gun was loaded" in the arrest affidavit. It was Officer Gilbert's understanding from the statement of Brenda Smith that the suspect had discharged his gun prior to the arrival of Officer Romero and that the suspect was intoxicated when he did so, and Officer McFadden agreed with Ms. Gilbert that the offense of using a firearm while under the influence could appropriately be charged.15 In any event, Ms. Gilbert's use of the phrase "since the gun was loaded" in the arrest affidavit was, under the circumstances, ambiguous. Pursuant to her testimony, which is credited, Officer Gilbert assumed that, because the suspect discharged the gun, the gun had, at some point, been loaded; Officer Leon and Lieutenant Lindahl assumed that the phrase referred to the time period in which the suspect was involved in the altercation with Officer Romero. The first opportunity Officer Gilbert was given to explain what she meant by the phrase was in the sworn statement she gave on October 20, 1994. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert gave false statements, which she did not believe to be true, in her sworn statement given on October 20, 1994, to the Metro-Dade Police Department's internal affairs investigator. First, the conflicts in the testimony of Officer McFadden and Ms. Gilbert have been resolved on the basis of the evidence presented herein, and the persuasive evidence supports the finding that Ms. Gilbert did not make a false statement under oath when she stated that Officer McFadden signed the arrest affidavit after she included the offense of using a firearm while under the influence and inserted the phrase "since the gun was loaded." Second, contrary to the position taken by the Commission, Ms. Gilbert did state in the October 20, 1994, sworn statement that she had overheard Officer Romero state that the gun was not loaded when the suspect was arrested. Third, although Ms. Gilbert's testimony in her sworn statement that she had never discussed the report with Officer Leon conflicts with Officer Leon's testimony that she asked Officer Gilbert if the gun was loaded, it is reasonable to infer that, due to the brief, casual nature of Officer Leon's inquiry to Ms. Gilbert and the length of time which elapsed between the incident and her sworn statement, Ms. Gilbert simply forgot that Officer Leon had asked her that one question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission dismiss the Administrative Complaint against Hawanda Gilbert dated June 28, 1996. DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of June, 1999.
