Findings Of Fact Petitioner, Aaron Attias ("Attias"), worked for the town of Bay Harbor, Florida, from June, 1977 to April, 1992, as a tollman in Bay Harbor Island. Pursuant to a rule of the town of Bay Harbor, Attias was required to collect a thirty-five cent toll per automobile. Uniformed police officers in marked police cars were exempt from the toll; however, police officers not in uniform and in unmarked cars were charged the toll. In April, 1992, a woman pulled up to Attias' toll booth and told him she had just been robbed and she had no money to pay the toll. Attias paid her toll, told her to pull over to the side of the road, and called the Bay Harbor Police. Allen Block, a police officer, for Bay Harbor, was dispatched to the toll facility to investigate the robbery. He learned that the crime occurred in North Miami and, thus, should be investigated by the North Miami Police. A uniformed, female police officer in a marked police car pulled up to the toll booth. The officer was not a Bay Harbor police officer. Attias allowed her to pass without paying the toll because she was in uniform and in a marked car. Approximately twenty minutes later, a motorist in an unmarked car pulled up to the toll booth and identified himself as a police officer. Attias charged him the thirty-five cent toll. The officer paid the toll; however, based on the motorist's demeanor, Attias felt that he didn't like having to pay the toll. Attias gave the officer a receipt. Later, Officer Block and Sergeant Bateman came to the toll facility and spoke with Attias' supervisor and advised him they were there to arrest Attias. Attias' supervisor advised him the police wanted to see him. Attias put his money box in the vault and met the police officers in the hallway leading to the main toll facility. There is conflicting testimony concerning what happened after Officer Block and Sergeant Bateman met with Attias. According to Officer Block, Attias refused to speak to the police, grabbed Sergeant Bateman and pushed him with both hands against the wall. Officer Block and Sergeant Bateman informed him he was under arrest for obstruction of justice. This charge was because Attias had charged the North Miami police officer the thirty-five cent toll. According to Attias, he asked the policemen what they wanted, they began to crowd him, and his shoulder touched Sergeant Bateman. Attias testified that he did not push Sergeant Bateman. Having judged the demeanor and the credibility of the witnesses, I find that Attias did push Sergeant Bateman with both hands, knocking him against the wall. The pushing was not done in self-defense or in defense of another. On August 12, 1993, Attias applied for a Class "D" Security Officer license with the Department of State (Department). By letter dated November 24, 1993, the Department denied his application, citing as grounds Section 493.6118(1)(j), Florida Statutes. Other than his arrest for the incident at issue, Attias has never been arrested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Aaron Attias' application for a Class "D" Security Officer license. DONE AND ENTERED this 18th day of April, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-7159S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed finding of fact: Petitioner's Proposed Finding of Fact. Petitioner's unnumbered finding of fact on page 2 of his proposed recommended order is rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Alan S. Fishman, Esquire Fishman & Goldstone Suite 202 2300 West Sample Road Pompano Beach, Florida 33073 Henri C. Cawthon, Esquire Division of Licensing The Capitol, MS-4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992, as amended, the Act or Chapter 760, Florida Statutes.
Findings Of Fact The Palm Beach County Sheriff's Office is a law enforcement agency that employs roughly 3,400 individuals, of whom approximately 1,200 are sworn law enforcement officers and 700 are sworn corrections officers. The remaining employees are civilian or non-sworn. Murphy was hired as a deputy sheriff by PBSO on October 26, 1992. He was continuously employed in that capacity until his termination on October 11, 2002. For portions of the time he worked for PBSO, Murphy also was employed at a Home Depot store and in his father's towing business. Murphy’s career at PBSO was the fulfillment of a life dream, one for which he had worked extraordinarily hard. Murphy's father worked in law enforcement, and instilled within his only son a dream "to serve and protect." Despite his family background, Murphy was not an obvious candidate for a career in police work. Murphy was a marginal student all his life. He failed second grade, and passing any academic subject was a struggle. Yet, he persevered, determined to realize his dream of following his father's footsteps. Murphy worked long hours on schoolwork, sports, and in the family towing business. He was able to attain a high school diploma by applying himself diligently to his academics and seeking out extra help. With constant practice and repetition of his class work, Murphy was able to master material well enough to pass necessary courses, but he was not good at transferring knowledge and information to other settings. Despite his weak academic history, or perhaps because of the perseverance it showed, Florida State University awarded Murphy a partial football scholarship. In pursuit of his life dream, Murphy chose to major in criminal justice. Again, he experienced academic difficulty. As he had done in grammar school and high school, Murphy sought out extra tutelage and put in whatever hours it took to complete his degree. In due course, Murphy applied for and obtained a job at PBSO, having fulfilled all its employment criteria, including being licensed to carry a firearm and having passed a psychological evaluation. Murphy's first assignment was road patrol. Road patrol in most law enforcement agencies, particularly those in large urban areas such as Palm Beach County, is an entry-level position, and a baptism by fire. Every traffic stop is potentially life threatening. Road patrol officers may be called upon on a moment's notice to provide back up to fellow officers who are under fire. Virtually every interaction with the public calls for grace and good judgment under stressful circumstances. The most ordinary of days on road patrol result in a need to generate reports. There are, as Murphy noted, "hundreds of formulas" which deputies must understand so that they can properly document traffic accidents. A working knowledge of Florida Statutes, criminal and civil procedure, and related court rules, is also required. It soon became apparent that Murphy was unsuited to road patrol. With its incessant demands upon him to quickly access and apply academic training to the infinite variables of street policing, road duty revealed that Murphy was unable to translate his classroom learning to the demands of the job. His supervisors were therefore obliged to spend a disproportionate share of time addressing situations created by Murphy's sub-par performance. After two years, Murphy was assigned to Palm Beach International Airport (PBIA). Murphy found this position more congenial. Freed of the stress of road patrol and its unceasing paperwork demands, Murphy’s weak academic skills were no longer a constant irritant to his supervisors. Nonetheless, Murphy's annual job evaluations make clear that in either assignment, his job performance was marginal. Murphy maintained excellent physical fitness and a professional appearance at all times, but was often rated borderline in areas involving judgment, ability to withstand pressure, and relations with colleagues and the public. As far back as his 1993-94 evaluation, Murphy's supervisors cited concerns regarding his common sense, and his ability to make sound decisions and to exercise good judgment. Murphy found it difficult to stay awake when assigned to the midnight shift, a problem that was easily remedied with a schedule change. Much more problematic was his difficulty in quickly and effectively writing reports. Murphy's deficiencies in report writing were noted on at least three annual evaluations, and PBSO made a good faith effort to assist Murphy in remediating his deficiency by providing him extra report writing training. Murphy places substantial significance upon an incident which he states occurred in April 1995 when he was on routine road patrol and was one of several deputies asked to respond to a domestic disturbance call. The incident involved unholstering his gun. Based upon Murphy's description of the incident and resulting symptoms years after the fact, doctors diagnosed PTSD. The 1995 incident was not documented in any PBSO records presented at hearing. The only evidence regarding PTSD is contained in Murphy's description of the event and his reaction to it, which he related to a number of doctors he saw in connection with his pending dispute with PBSO regarding his fitness for duty. Murphy expressed to some of these doctors that the transfer to PBIA was provoked by the 1995 incident, but there is no record or testimony corroborating Murphy's opinion in this regard. Murphy has always enjoyed his posting at PBIA, but his personnel file reflects that after three years there, his job performance remained well below reasonable expectations. Although he could handle most of the everyday tasks presented to deputies assigned to the airport, he at times appeared confused when called upon to make a decison for which there was no blueprint. He lacked the knowledge of criminal law and procedure, as well as basic airport operation, reasonably expected of a deputy with his experience. Supervisors gave Murphy credit for a "can-do" attitude and for promptness. However, he had a propensity to blame others or make excuses for his mistakes. It followed that Murphy continued to require a disproportionate share of attention of supervisors, even on routine decisions. Several years into his career, he continued to struggle with basics, for example, maintaining composure when challenged by members of the public or given constructive feedback by colleagues or supervisors. In 1998, it was recommended that Murphy be required to re-enter the field training officer ("FTO") program, and spend at least six months on road patrol to provide "much needed experience and the self confidence that is presently lacking." By the 1998-99 evaluation, supervisors' impatience with Murphy was growing. While acknowledging his ambition and willingness to pursue educational opportunities, the report noted his continued propensity to become aggressive with co- workers and antagonistic to supervisors and "apparent inability to control his temper." Murphy completed the FTO remedial training recommended the previous year, as well as eight additional courses aimed at improving his performance, and achieved an overall performance evaluation of "average, meeting the basic requirements of most [job] descriptions." In early 2000, Murphy received a 90-day unsatisfactory performance notice. In-house remedial training was offered, but the tone of the evaluator was decidedly impatient and frustrated. Murphy's supervisors began to document specific instances of their dissatisfaction with his performance. One example from his 2000 evaluation reads: "After an incident where [Murphy] had taken 21 hours to complete a simple drug arrest, he was placed with an FTO in the airport. These training sessions had little effect on his overall job performance. " While some improvements were noted in 2001, Murphy was again counseled on common sense, judgment and job knowledge. Against this background, an incident occurred on January 18, 2002, which would eventually result in Murphy’s termination. Early that morning, Murphy was off-duty and in a hurry to catch a flight out of PBIA to Washington D.C. via Charlotte. As a result of five years’ experience enforcing airport security protocols, Murphy was well aware that it was impermissible to leave baggage at the skycap station while he parked his car. However, Murphy identified himself as a deputy assigned to the airport and insisted that the skycaps check his baggage for him while he parked. Inside the airport, Murphy observed a lengthy passenger screening line. Murphy admits to feeling "entitled," in that this would be his first vacation in two years. Determined to make his flight, he formed an intent to cut to the front of the line to pass through the metal detectors and then to his gate. Murphy made contact with a fellow deputy, David Shoemaker (Shoemaker) who had been assigned to the airport less than six months. Shoemaker told Murphy to come around the metal detector, which he did, chatting briefly with National Guard officers on duty, as well as the "screening people,” all of whom were well known to him from his years of service at PBIA. At hearing and at all times since the incident, Murphy has attempted to deflect responsibility, saying, ”My intent was to cut in line. My intent was to go through the screening process. However, the deputy sheriff was on duty. I did what I was told, and I walked around the screening area. " It was Murphy, not Shoemaker, who was the experienced sheriff's deputy in this situation. Murphy was reasonably expected to know, particularly in the post-September 11 environment, that it was inappropriate, and possibly illegal, to seek special treatment based upon his personal acquaintance with security personnel. Members of the general public witnessing this "professional courtesy" could be reasonably expected to be irritated, angry, or even in fear for their safety, inasmuch as Murphy was dressed in civilian clothing; the public had no way of knowing that he was any more "safe" than the wheelchair-bound elderly people and babies who are screened in the interests of passenger safety. In this instance, one person was sufficiently annoyed or concerned to report the incident to airport officials and to seek an explanation. By this time, Murphy and his bags were enroute to Charlotte, N.C. At the Charlotte Airport, Murphy and his luggage were briefly detained and searched, and he was thereafter allowed to proceed to his final destination. At some point while on vacation, Murphy called a person named Gilbert Johnson, whom Murphy identified as a friend of his from the National Guard. According to Murphy, "Gilbert had told me that everybody was telling me [sic] I was going to jail for a federal crime, and I was very scared and very worried. " There was no evidence to suggest that Murphy was ever in danger of being jailed for a crime, federal or otherwise. However, the poor judgment he exercised in the service of making his plane would, in time, result in credible medical evidence that Murphy could not, at all times relevant, fulfill the requirements for service as a sheriff's deputy, with or without accommodations. Shortly after the January 18 incident, PBIA officials asked that Murphy be removed from his airport posting, at least until the incident could be investigated. Even before he returned from vacation, PBSO had decided that Murphy would be reassigned to road patrol. Upon his return to work, Murphy met with supervisors. At some point in this meeting, he ceased to participate, instead exercising his right to be represented by counsel. Murphy was informed that he would be suspended with pay pending the outcomes of routine criminal and administrative investigations. Although the facts surrounding the incident were in all material respects undisputed, it took months for PBSO to conclude its internal affairs investigation, which ended with a recommendation that Murphy receive a two-day suspension for having improperly used his status as a law enforcement officer to gain special privileges not available to the general public. No state or federal agency pursued criminal charges against Murphy. Neither the internal affairs investigation nor criminal investigation(s), if any there were, played any role in Murphy's eventual termination. Murphy's anxiety about what he perceived as immense threats to his employment and to his liberty persisted and fed on themselves. The delay in completing the internal affairs investigation exacerbated his fears, particularly his baseless belief that he would be sent to jail for having sought and received special treatment at PBIA. Murphy persisted in the belief that jail was a real possibility, and he was consumed with worry. Almost as distressing to Murphy was the possibility that he would be returned to road patrol, a job for which Murphy correctly believed he was unsuited. In the immediate aftermath of the PBIA incident, Murphy's problems, real and imagined, combined to cause him to decompensate. He became physically ill and emotionally distraught to a degree which rendered him unfit for duty. To his credit, Murphy informed his supervisor that he was uncertain of his present ability to adequately back up fellow officers should the need to do so arise. Concerned for Murphy's well being, a PBSO supervisor sent to his home deputies to check on him, and immediate arrangements were made to have him evaluated by Dr. Raul Diaz (Dr. Diaz). Dr. Diaz supported Murphy's belief that he was at the time temporarily unfit for duty. Dr. Diaz recommended psychological evaluation by Dr. Myles Cooley ("Dr. Cooley"). At hearing, Murphy stated his belief, but offered no evidence, that officers who are the subject of an internal affairs investigation are granted administrative leave to preserve their full salary and benefits pending the outcome of the investigation. In this case, PBSO insisted that Murphy take family medical leave beginning on Februry 1, 2002. By this time, Murphy felt he was able to return to work and sought to persuade PBSO to return him to PBIA. To that end, he cooperated with PBSO's efforts to obtain medical and psychological evaluations. He also proceeded on a parallel track, seeing medical professionals of his own choosing and cooperating in the testing, evaluation, and medication regimens they recommended. In February 2002, Murphy's attorney provided PBSO with signed prescription pad notes from two medical doctors, Sanford Kaufman and Kevin Inwood. Dr. Kaufman’s note read, "No psych diagnosis other than reactive stress. Okay to return to work, no restrictions." Dr. Inwood wrote, "Pt. Is fit for duty after today exam not completed." Neither note indicated the respective doctor's area of specialization, credentials, what tests had been performed on Murphy, what information concerning Murphy had been furnished to them, and from what sources. Standing alone, these doctors' notes did not furnish a factual basis upon which a reasonable person could conclude that Murphy was fit for duty. Meanwhile, Murphy continued to cooperate in evaluations commissioned by PBSO. Dr. Cooley saw Murphy in March and April 2002, and conducted exhaustive testing, including evaluations for attention dysfunction, learning disabilities, and other disorders that might affect his job performance. In speaking with doctors in the course of these evaluations, and in his testimony at hearing, Murphy acknowledged that both before and after being diagnosed with ADD, ADHD, and PTSD, he was fully able to perform the numerous activities of daily living pertinent to a man of his age who has always been active in sports and has held physically demanding jobs. Murphy is unrestricted in his ability to lift, see, hear, breathe, swim, sit, stand, bathe, and dress, all of which are necessary to the performance of active police work, and countless other jobs requiring an individual to be in good physical condition. At all times material to this case Murphy is qualified to work in construction, having built the home he lives in. He is also licensed to operate any type of vehicle, continues to work in the family towing business, and has worked in retail. In his final report dated April 8, 2002, Dr. Cooley concluded, in pertinent part: In this examiner's opinion, Mr. Murphy does have Attention Deficit Hyperactivity Disorder and is significantly intellectually limited. He does not qualify for a diagnosis of a learning disability because his IQ and his academic skills are quite similar. In a more generic sense, however, he is clearly learning disabled based on his limited cognitive skills particularly in the verbal domain. Finally, Mr. Murphy appears to be experiencing a Generalized Anxiety Disorder or an Adjustment Disorder with Anxiety. Mr. Murphy's behavior in the presence of this examiner indicates severe anxiety and fear that he reacts to with anger, denial, defensiveness, and suspicion and he tries to protect himself from people and procedures he does not fully understand. He could truly benefit from some counseling as he awaits the resolution of his employment status. Dr. Cooley's evaluation was forwarded to Murphy's counsel, and to Dr. Diaz, who, after re-evaluating Murphy and reviewing prior test results and Dr. Cooley's report, prepared a second report for the PBSO. In this report dated May 9, 2002, Dr. Diaz concluded that "Murphy, within reasonable probability remains not fit for duty to function in law enforcement at this time." Dr. Diaz left open the possibility that with appropriate treatment, Murphy may, at some future date become fit for law enforcement duty. However, on September 16, 2002, Murphy's own doctor, forensic psychiatrist Harley Stock (Dr. Stock), opined in pertinent part: . . . Murphy is likely to have difficulties in carrying out the following specific duties and responsibilities of a law enforcement officer: Subdue resisting offenders using appropriate force, including the use of deadly force – Deputy Sheriff Murphy may become emotionally overwhelmed if placed in a position in which lethal force may be necessary. In this regard, such behavior may lead to the endangerment of the public or other officers. Conduct law enforcement investigations – Deputy Murphy has a difficult time formulating appropriate law violations. Because of his limited cognitive abilities, he will have difficultly preparing and distributing reports. These deficits may manifest themselves in difficulty coordinating activities at crime scenes; collecting crime scene evidence; conducting interviews, taking sworn statements, formal confessions or depositions; preparing reports of affidavits; and presenting testimony in both civil and criminal proceedings. Should Deputy Murphy be placed in a situation in which his anxiety level overwhelms him, he will have difficulty interacting with the public. His judgment is likely to be impaired in such a situation and he may not follow appropriate procedures. He is also likely to have difficulties in the following area performance aptitudes: Data Utilization – Deputy Sheriff Murphy will have difficulty calculating or tabulating data or information in a systemized way. He also may have difficulty performing actions subsequent to these computational operations. In terms of situational reasoning, Deputy Sheriff Murphy is likely to have difficulty exercising good judgment and decisiveness in those situations that are unexpected and involve exposing the Palm Beach County Sheriff's Office to significant litigation. Based on the above, it is this examiner's opinion that Deputy Sheriff Murphy should be considered permanently unfit for duty. It is further my opinion that no reasonable accommodation can be offered and that his impairment is a direct result of his employment as a law enforcement officer. . . . No purpose is served by additional invasive recitation of the content and conclusions of reports and testimony provided by doctors who evaluated Murphy. The evidence regarding Murphy's fitness for duty, with or without accommodation, has been carefully considered and demonstrates that no combination of job accommodations, medication, treatment or training, would render Murphy able to fulfill the requirements for service as a deputy sheriff at any time material to this case, including at the time he was terminated on October 11, 2002. Notwithstanding the medical evidence, Murphy contends that PBSO had, and continues to have, the ability to ". . . put me into another law enforcement position, which they can clearly still do." With all respect for Murphy's opinion, the unambiguous testimony provided by Respondent’s human relations office is that PBSO does not distinguish between what a deputy is required to do at the airport, on road patrol, or behind a desk. To the contrary, officers assigned to PBIA, or off duty officers for that matter, may be mobilized on a moment's notice to address a profoundly dangerous and chaotic situation, at their assigned post, or elsewhere in the jurisdiction. Contrary to the assertion in his FCHR charge, there was no evidence that Murphy "ask[ed] for help with his law enforcement duties." He rejected as insulting any discussion of being placed in a civilian position or a position involving a substantial wage cut. The only accommodation he sought was re- assignment to PBIA in his former position.
Recommendation Based on the above Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Petitioner’s charge of discrimination and dismissing his complaint. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of August, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael G. Whelan, Esquire Whelan, DeMaio & Kiszkiel, P.A. 80 Southwest Eighth Street, Suite 1830 Miami, Florida 33130 Jack Scarola, Esquire Searcy Denney Scarola Barhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
Findings Of Fact Vernon St. Charles is a radio teletype operator I with the Florida Highway Patrol and is a career service employee with appeal rights with the Career Service Commission. On or about November 1, 1977, St. Charles was the radio teletype operator on duty at the Florida Highway Patrol Tampa District Office. While he was on duty, an accident occurred involving a young child. St. Charles dispatched a Florida Highway Patrol trooper to the scene of the accident who reported that the child was very seriously injured. The trooper requested a homicide investigator be dispatched which St. Charles did. G. Ronald Stroud is a sergeant with the Hillsborough County Sheriff's Department assigned the duty of investigating accidents involving school-age children as a part of the Department's safety program. Sergeant Stroud received notification from the radio dispatcher of the sheriff's department that an accident had occurred near a school involving a child which Florida Highway Patrol Units were investigating. Sergeant Stroud called the Florida Highway Patrol District Office and spoke with St. Charles. Sergeant Stroud identified himself and asked about the accident and how old the child was to determine whether he should follow up the accident for the Hillsborough County Sheriff's Department. St. Charles had received calls from the medical examiner's office, the U.S. Post Office, whose vehicle was involved in the accident, and Sergeant Stroud from the Hillsborough County Sheriff's Department. At the hearing, St. Charles was uncertain which call had been Stroud's; however, St. Charles explained that he had tried to contact troopers at the scene to get additional information and that they were away from their vehicles. St. Charles did not have the information requested by Sergeant Stroud and therefore referred him to the hospital where they had taken the child. Sergeant Stroud identified Exhibit 2, a complaint letter he had written to Lieutenant Lowman of the Florida Highway Patrol. Stroud stated in the letter that an unknown male dispatcher, later determined to be St. Charles, had told Stroud that "He wasn't really concerned how old the child was and that if I (Stroud) wanted to know I could call the Brandon Hospital." At the hearing, Sergeant Stroud reconfirmed his recollection of St. Charles' comments to him. Without regard to the exact language used by St. Charles, it is clear that St. Charles did not provide Sergeant Stroud with the information which he sought and did not explain the existing situation which prevented him from giving Stroud the information. The position of radio teletype operator is an important one because the operator is responsible to transmit calls to and from the troopers by radio, perform certain law enforcement checks for the troopers by telephone or teletype, and respond to telephone calls from the public and other law enforcement agencies. The radio teletype operator's duties contribute to the overall enforcement effort of the Florida Highway Patrol and to the relationship of the Florida Highway Patrol with the public and other law enforcement agencies. This requires that the radio teletype operator perform his duty in a professional manner, using good personal judgment and diplomacy. St. Charles had been counseled previously about the manner in which he conducted his duties which at times bordered upon rudeness. St. Charles explained that he spoke loudly and in short sentences because his mother had been deaf and that in the pressure situations which sometimes developed, his manner of speech and abruptness might appear to be discourteous and rude to those with whom he was speaking.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency took the disciplinary action for good cause and therefore should be sustained. DONE and ORDERED this 13th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1978. COPIES FURNISHED: Vernon L. St. Charles 1401 North Forbes Road Plant City, Florida 33566 Mrs. Dorothy Roberts Appeals Coordinator, CSC 530 Carlton Building Tallahassee, Florida 32304 Edwin Strickland, Esquire John Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida Mr. Maurice Helms Personnel Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and was at all times material to the instant case, the holder of a Class "D" security officer license (Number D93-17516) issued by the Department. McRoberts Protective Agency, Inc. (hereinafter referred to as "McRoberts") is an agency that offers security services. For approximately one year and eight months (and at all times material to the instant case), Respondent was employed as a security officer by McRoberts. He was assigned to service the Antillean Marine Shipping (hereinafter referred to as "Antillean") account. His supervisor was David Bowling. Antillean demanded that McRoberts supply security guards who spoke both English and Spanish. Respondent met this requirement, although he was not fluent in English. Respondent and all other McRoberts security officers assigned to the Antillean account were given written post orders which they were expected to obey. Respondent received his written post orders prior to April 22, 1995. These post orders included the following: Security officers are not permitted to sit in their personal vehicles during their shift. There will be NO SLEEPING on duty. Personnel found sleeping will be fired on the spot. Roving officer must make key rounds every hour. Please note: If the officer does not make rounds, he will not get paid for that time. (Important) The only thing we asked of you is to do the job you were hired for and the client will be satisfied and there will be no problems. NO SLEEPING ON POST !! Excuses will not be accepted. POST Number 1: Security officer will be responsible for front gate. All vehicles entering terminal after hours (unless management personnel) will be stopped to identify occupants. Visitors to vessels (unless visiting captain or officers) will be required to remain at front gate until crewman is located. Rover (Post Number 2) will locate crewman. On April 22, 1995, while on duty at Antillean (at Post Number 1), Respondent was sitting in his personal vehicle in violation of the post orders. Bowling observed Respondent in the vehicle and issued him a Notice of Failing Performance (which is essentially a written reprimand) for having committed this violation. The notice contained the following "comments" made by Bowling: S/O was on property in his car (laying down in the back seat). He told me that he has been doing this for a year. 1/ I told him that Morales 2/ does not allow it. He agreed w/me that he knows better. On May 26, 1995, Bowling again observed Respondent in Respondent's personal vehicle while Respondent was on duty at Antillean (at Post Number 1). This time Respondent had his eyes closed and was apparently asleep. Accordingly, Bowling issued Respondent another Notice of Failing Performance, which contained the following "comments" made by Bowling: I arrived at 0515. C. Figueroa was inside his car asleep at Post 1. In accordance with McRoberts' written policy, Respondent was docked four hours pay for having been asleep while on duty. Respondent was angry at Bowling for having issued him the Notice of Failing Performance that had resulted in this loss of pay. On June 9, 1995, when Bowling approached Respondent and asked him to sign a log sheet, Respondent vented his anger by yelling at Bowling. Respondent accused Bowling of taking food out of the mouths of Respondent's children. Respondent then threatened Bowling by telling Bowling that he would see Bowling "on the streets" and that Bowling was not "going to live much longer." 3/ While making these threats, Respondent came close to, but did not touch, Bowling. He had no intention of actually harming Bowling, but Bowling nonetheless reasonably feared for his safety. Another supervisor was called to the scene and escorted Respondent away. Bowling prepared and submitted a written report describing the incident. Respondent's employment with McRoberts was subsequently terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent committed the three violations of subsection (1)(f) of Section 493.6118, alleged in the Administrative Complaint, and (2) disciplining him for having committed these violations by suspending his license for a period of two months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1996. STUART M. LERNER, 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 22nd day of January, 1996.
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.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint, as amended,1 and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of State, Division of Licensing (Department), is a state agency charged, inter alia, with the duty and responsibility to license and regulate private security, investigative, and repossession services pursuant to Chapter 493, Florida Statutes. Respondent, Jonas Mercier, is now, and was at all times material to this case, licensed by the Department as a Class "D" Security Officer, having been issued license number D97-00533. From January 9, 1997, until March 3, 1997, Respondent was employed as a security officer by Borg-Warner Protective Services (Borg-Warner), a business which provides security services. Among Borg-Warner's clients during the period of Respondent's employment were Hertz Rent-A-Car (Hertz) and Shaw Trucking. On February 1, 1997, Respondent's assignment was to provide security services at the Hertz maintenance facility in Broward County, Florida. At 7:30 a.m., during the course of his shift, Respondent was found sleeping on duty by the client's director of security. For this offense, Respondent received an "official reprimand" from his employer. On Sunday, March 2, 1997, Respondent's assignment was to provide security services at Shaw Trucking in Broward County, Florida. His shift was to begin at 9:00 p.m. Respondent telephoned the Borg-Warner dispatcher, and reported for duty at the appointed time. During the course of that conversation, the dispatcher apprised Respondent that the road supervisor, Moses Osgood (Osgood), would not arrive until approximately 11:00 p.m. to open the padlocks. Osgood arrived at Shaw Trucking at 10:28 p.m. on March 2, 1997, and found that Respondent had left his assigned post without notice to, or permission from, Borg-Warner. Osgood remained at the post until Respondent returned at 11:08 p.m., and resumed his post. Respondent's explanation for his absence was that, since Osgood was not scheduled to arrive until 11:00 p.m., he had gone to get something to eat. In his absence, however, the client's premises were without security. Respondent was discharged by his employer on March 3, 1997, for having left his post without notice or authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I and II of the Administrative Complaint and that, as a penalty for such offenses, Respondent's Class "D" Security Officer License be revoked. DONE AND ENTERED this 23rd day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 March, 1998.
