The Issue Whether Respondent, a certified law enforcement officer, committed the various acts of misconduct described in the Amended Administrative Complaint, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent's certificate.
Findings Of Fact Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. Respondent was certified by Petitioner as a law enforcement officer on March 12, 2003, and issued certificate number 229917. Respondent resided in Riviera Beach, Florida, for a portion of his childhood. During this time, he developed a friendship with Frederick Maurice Dean ("Dean"). He was also acquainted with Hasani Thomas ("Thomas"), although not as closely as with Dean. Respondent and Dean spent time together on a daily basis and their relationship continued as their lives took divergent routes. After graduating from high school, Respondent attended college out of state and then returned to Riviera Beach and earned his A.S. degree at the local community college. Respondent continued with his studies at Florida Atlantic University. While working for the City of Riviera Beach in a civilian capacity, Respondent remained personally close with Dean and attempted to help Dean obtain employment. While enrolled at the local policy academy, on September 3, 2001, Respondent was hired by the Riviera Beach Police Department ("RBPD"). Respondent's initial assignment with RBPD was to the road patrol. The intersection of 33rd Street and Old Dixie Highway, the location of the Worldwide Grocery Store ("Worldwide"), was within his area of patrol. In 2003, the Drug Enforcement Administration ("DEA"), the Federal Bureau of Investigation ("FBI"), and the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), began an operation entitled "Operation Worldwide." The purpose of Operation Worldwide was to eradicate a gang or group of individuals involved in various crimes including murder, drug trafficking, and robbery. The targets were believed to be congregating around, and conducting their activities, in part, from, Worldwide. As part of the plan, the FBI utilized confidential informants to purchase drugs from the targeted group. Additionally, Operation Worldwide sought to conduct surveillance by placing video cameras in covert positions. Initially, one camera, which was not visibly apparent, was installed on a pole in a position to observe the activities at Worldwide. This installation proved ineffective, as it was vandalized with spray paint after the second day of operation. In response, a second video camera was installed in the same capacity at a greater distance from the Worldwide; however, that camera similarly proved ineffective as the location was apparently disclosed or discovered by the criminal subjects. Operation Worldwide concluded in 2005 when a grand jury issued federal indictments and arrest warrants for multiple targets of the operation. Three particular targets and their respective post-arrest statements are pertinent to the instant action, and are addressed seriatim. On May 12, 2005, Hasani Thomas, a previously convicted felon, was federally indicated on distributing a Schedule II controlled substance, and having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessing a firearm in and affecting commerce. A warrant was issued and he was arrested by U.S. Marshals on August 11, 2005. Post-arrest, Thomas, cooperating with law enforcement, made several allegations concerning Respondent. He provided that Respondent and Dean were close friends. Dean had advised Thomas that he was wanted based on information obtained from Respondent. Thomas also alleged that Respondent had disclosed the location of the surveillance cameras at Worldwide to Thomas. Dean, Respondent's friend and a previously convicted felon, was federally indicted on two counts of distribution of crack cocaine and a warrant was issued for his arrest on May 12, 2005. Dean was arrested by U.S. Marshals on August 14, 2005. The day following his arrest, Dean was interviewed by FBI Special Agent Steven Burdelski. Prior to the interview, Dean was informed of why he was being interviewed and the federal charges he was facing. Post-Miranda, Dean admitted to being a seller of drugs, including cocaine, and that he made his living by selling drugs. He further admitted to selling crack cocaine at Worldwide and gave the name of the individual who supplied him with his drugs. Dean was then told by his interviewer that agents were aware he was friends with Respondent and that they wanted to learn what Dean knew about Respondent and specifically what Dean knew about any criminal activity in which Respondent may be involved. Dean subsequently provided numerous allegations concerning Respondent. Specifically, Dean contended that Respondent had encountered Dean at the Palm Beach Mall approximately three months earlier and advised Dean that federal law enforcement officers were looking for him, that they were going to give him "a lot of time," and that he needed to lay low. Dean further advised that Respondent would advise Dean and other drug dealers at Worldwide if law enforcement was planning an operation, the type of vehicles being utilized by law enforcement, and that a camera was observing their activity at Worldwide. Additionally, Dean advised that on several occasions Respondent had provided drugs to Dean in return for cash. Based upon the information received, on August 15 and 16, 2005, several controlled recorded phone calls were attempted and completed by and between Dean and Respondent. During the course of one of the recorded calls, Dean inquired as to whether "his picture" was up at the police station. Respondent advised Dean that he had not seen his picture and that he had not heard anything specifically about Dean. Dean and Respondent further discussed that law enforcement had "busted" Thomas and that law enforcement was serious. Dean stated that Respondent had warned Dean and that he was laying low. The conversation turned to the topic of cameras at Worldwide. Dean asked Respondent whether there was a camera installed at Worldwide. Respondent initially responded that he did not know and that the owner of the store, Mike, was doing some rebuilding at the store. Dean then asked again if the camera was still up at the store. Respondent stated, "You know those mother fuckers got everything over there boy." To which Dean replied, "I know bitch people got to be careful over there." Respondent further stated that, "They got everything, they got everything and your momma over there boy." When asked by Dean if law enforcement had taken down the big camera, Respondent advised that he did not know, but they were "cleaning up the neighborhood." Finally, Dean requested Respondent to use his connections and determine whether there were pending charges against Dean. Respondent unequivocally advised Dean that he could not do so as he was not President Bush. Adrian Henderson, a convicted felon, was arrested in 2006 on felony narcotics charges. Henderson, in a federal proffer statement, alleged that Respondent advised individuals at Worldwide concerning the location of the cameras and, upon request, would run Henderson and Dean's name through "the system" to determine if there were outstanding warrants. Thomas, Dean, and Henderson in subsequent statements made numerous allegations concerning Respondent's assistance, participation, and acquiescence to the drug activities being conducted at Worldwide.3/ Those allegations included, but are not limited to, the following: allowing Thomas to conduct cocaine transactions in Respondent's presence; advising the details of surveillance camera placement; Respondent's encountering Thomas and advising him that U.S. Marshalls had a picture (warrant) concerning Thomas and Dean, but failing to arrest; Respondent's providing Dean crack cocaine and marijuana for cash; failing to arrest individuals close to Worldwide; Respondent's advising when the drug task force was operating in the area; Respondent's advising of the make and model of surveillance vehicles; Respondent's checking for warrants and advising if a warrant existed, but not arresting the individual. After obtaining the initial 2005 post-arrest statements from Thomas and Dean, FBI Agent Steven Burdelski provided the information concerning Respondent's alleged involvement to RBPD for an internal investigation. Additionally, the information was reviewed with the United States Attorney's Office. The United States Attorney's Office determined that it would not proceed with criminal prosecution of Respondent. Captain John Mammino was involved with the internal affairs investigation of Respondent. In addition to reviewing the initial statements, in 2006, he conducted interviews of Dean, Thomas, Henderson. In 2009, the Palm Beach County State Attorney's Office formed a public integrity unit. Captain Mammino desired that State Attorney's Office review the case concerning Respondent, and, therefore, conducted another round of interviews with Thomas, Dean, and Henderson. The entirety of the information was provided to the State Attorney's Office, and they also declined to prosecute Respondent. Thereafter, an investigation was conducted in an effort to corroborate the allegations that Respondent provided warrant information to Dean. The Florida Crime Information Center ("FCIC") and the National Crime Information Center ("NCIC") databases are used for obtaining criminal history information. FCIC is the central repository for all criminal histories within Florida. Users in Florida must become trained and certified through the Florida Department of Law Enforcement ("FLDE") instructors. Respondent was certified to access FCIC/NCIC on July 1, 2003. Warrant information is placed into the FCIC/NCIC database by law enforcement agencies, and such information is not available to the public. The FCIC/NCIC database is not to be used for any non law-enforcement related purpose. A certified user may access FCIC by logging in with an individual password and user name. A computer database, the Transaction Archive Reporting ("TAR") database, keeps a record of all queries within the FCIC system. FDLE maintains the TAR system, and same may be searched to produce records of an individual's queries or transactions. The reports generated from such a search are called TAR reports. A search was conducted of the TAR database for any FCIC queries concerning Dean. A review of the TAR reports generated from the search revealed that Respondent accessed FCIC and manually inputted the first name, middle name, last name, date of birth, sex, and Florida Driver's License number of Dean on three occasions: October 7, 2003, October 17, 2003, and November 30, 2003. These searches would have revealed whether Dean had any outstanding warrants. Dean had no warrants outstanding on the above-referenced dates. On June 30, 2010, over five years subsequent to the above-referenced arrests, Respondent participated in a sworn interview with RBPD Internal Affairs. During this interview, Respondent was asked whether he ever ran Dean's name through the system. Respondent initially replied, "No. I never ran Freddie (Dean) through." After being advised, for the first time, of the results of the TAR reports, he stated that he did not remember running Dean's name: Officer Lewis: We pulled records from the FDLE database. It showed records showing on October 7th, 2003 at 4:03 p.m., that you ran Freddie Dean for warrants through FDLE's database. Respondent: I ran them or Tina Hall ran them? Officer Lewis: It actually listed your name. Respondent: I must have made an arrest on him for possession of marijuana. Officer Lewis: There was another one ten days later at 9:53 for the same person, Frederick Dean. Do you recall that? Respondent: No, sir. Officer Lewis: On November 30th, 2003 at 1:15 p.m. the same ran through the system, Frederick Dean for warrants. Do you remember that? Respondent: No, sir. Additionally, during the internal affairs interview, Respondent advised that he used certain "scare tactics" to prevent or disperse criminal activity. He would advise individuals that the "jump-out boys" (narcotics tactical unit) were coming or advise that cameras were everywhere to clear the area. RBPD Officers Derrick Jackson, Gary Wilson, and John Toombs confirmed the use of such tactics. These officers credibly testified that, due to a shortage of manpower, at times they would implement certain techniques to encourage known narcotics dealers to leave an area of the street. These techniques varied from simply sitting in the patrol car in close proximity, advising subjects to leave, advising subjects they would be arrested, approaching the subjects, and suggesting the tactical unit was out. During the June 30, 2010, internal affairs interview, Respondent was also asked about the allegation that Respondent encountered Dean at the mall after the federal warrant had been issued for his arrest. The pertinent dialogue is set forth as follows: Officer Lewis: That is when you were at the mall, when you saw him when he was wanted? You knew that he was wanted, but you didn't call. And you stated that was because you didn't know the right thing to do at the time? Officer Gordon: Yes. Plus the safety of my son too. And the way he was acting, really, really bothered me. Officer Lewis: How was he acting? Officer Gordon: He smelled of--he reeked of marijuana and alcohol. You could smell it coming from him. His eyes were bloodshot and he was just, "I ain't trying to go back to jail--I ain't going back to jail." Is pretty much what he said. . . . Officer Gordon: . . . He (Dean) was looking to see if I was going to pick up my phone and call-- Freddie Dean--the guy you are looking for-- is in the mall right now, blah blah blah. . . . Officer Lewis: He wanted to see if you would dime him out? Officer Gordon: Exactly. Officer Lewis: But you didn't? Officer Gordon: Unh-uh (indicating negative). At the final hearing, Respondent initially testified that he did not know a warrant was active for Dean when he encountered Dean at the mall. Respondent conceded, however, after listening to the recorded internal affairs interview, that he was aware of a warrant for Dean during the mall incident. The undersigned finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent directly participated in or condoned illegal drug activity. Similarly, the undersigned finds the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised said individuals or other potential criminal targets of the placement of the Operation Worldwide surveillance cameras. The undersigned further finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised the criminal targets of when and where narcotics operations were to occur. Petitioner established, by clear and convincing evidence, that Respondent queried Dean's name through FCIC and or NCIC on October 7, 2003, October 17, 2003, and November 30, 2003. Petitioner established, by clear and convincing evidence, that Respondent encountered Dean after the federal warrant was issued for Dean. At the time of the meeting, Respondent was aware of the warrant, and took no action to notify any members of the law enforcement community of Dean's recent location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012.
The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON 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 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
The Issue The issues in this case are whether the Respondent, by committing the felony of armed trespass while employed as a deputy sheriff, failed to fulfill his duties and responsibilities as an employee of the Petitioner, and, if so, whether the termination of the Respondent's employment was consistent with applicable disciplinary policy.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a deputy sheriff. The Respondent had been employed for 12 to 13 years as a law enforcement officer prior to his employment with the Petitioner. He was employed by the Petitioner for more than six years prior to the termination at issue in this proceeding. In September 2009, two undercover law enforcement officers, one of whom was the Respondent, went from a public alleyway through a privacy fence and into the private backyard property of a Pinellas County citizen. The entry occurred at night. The alley and backyard area were unlit. The Respondent was dressed in shorts and a t-shirt and was armed with a gun. The officers had no search warrant authorizing their entry onto the private property. The Respondent's entry into the private backyard was an act of trespass. The commission of a trespass while armed constitutes a third degree felony. The Respondent did not report the trespass to any superior officer within the Petitioner's chain of command. The Respondent has asserted that he was merely following the other officer's lead on the night when the trespass occurred and did not think that he had acted improperly. During a deposition for an unrelated criminal case, the Respondent was questioned about whether he had observed another officer engage in a similar trespass. The Respondent resisted answering the question, sought legal advice from an assistant state attorney, and then declined to answer the question. Even after being questioned about the issue during the deposition, the Respondent still failed to report the incident to any superior officer within the chain of command. After a complaint of misconduct was filed against the Respondent, the Petitioner commenced an administrative investigation. During the investigation, the Respondent acknowledged the trespass, but attempted to minimize his participation in the incident and to assign responsibility for the trespass to the other law enforcement officer. Bob Gualtieri, the sheriff of Pinellas County, Florida, is responsible for operation of the Petitioner and is authorized to impose discipline on the Petitioner's employees who violate rules or regulations adopted by the Petitioner in accordance with a Civil Service Act. The Petitioner has adopted General Order 3-1 to establish a standard of conduct for the Petitioner's employees and has categorized misconduct into disciplinary levels based on the severity of a transgression. "Level 5" violations reflect serious misconduct. The Respondent's participation in the felony trespass and his failure to report the incident to his superiors constitute separate level 5 violations. The Respondent violated Rule 5.4, which requires that employees be aware of their assigned duties and responsibilities and take prompt and effective action in carrying them out. The Respondent violated Rule 5.5, which requires that employees observe and obey all laws and ordinances and report violations by written memorandum upon their first duty shift following a violation. The Petitioner has adopted General Order 10-2 to establish a point system to be followed by the Petitioner's Administrative Review Board for the imposition of discipline based on adopted guidelines. The Respondent has accumulated 75 disciplinary points, 60 of which are based on the trespass incident underlying this proceeding. Termination from employment is within the range of discipline established by the Petitioner's rules and procedures applicable to the facts of this case. The Respondent has asserted that the sheriff's exercise of discretion in terminating his employment was severe and unreasonable. There is no credible evidence to support the assertion. The basis for the Respondent's termination was the Respondent's commission of the felony of armed trespass and his failure to inform any superior officer within the chain of command of the incident. The sheriff's decision to terminate the Respondent from employment was clearly warranted. There is no evidence that the sheriff inappropriately applied the Petitioner's rules and procedures or that any similarly-situated employee has been subjected to lesser discipline by Sheriff Gualtieri for comparable conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Sheriff's Office enter a final order terminating the Respondent from employment. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2013. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Carole Sanzeri, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675
Findings Of Fact Respondent was born on February 4, 1957. He attended the Orlando Police Academy from March to June, 1980. Academically, he ranked eighth among the 47 recruits. He received the Mayor's Award for overall performance. In 1980, after graduating from the Orlando Police Academy, Respondent joined the Orlando Police Department. He completed his field training without incident and then was assigned to patrol duty. After about six months, Respondent, who was already serving as an instructor at the Orlando Police Department, was requested to be an assistant squad leader. An assistant squad leader performs all of the duties of the sergeant when the sergeant is absent. After about six months as an assistant squad leader, a major asked Respondent to become field training coordinator in the training section. After a year on this assignment, Respondent was promoted to sergeant and then spent another year on the road as a patrol sergeant. At this point, the major in charge of the field operations bureau of the patrol division, asked Respondent to become his administrative assistant. Respondent served two majors a total of about a year in this position. Respondent was on track toward entering management in the police department. After a year as an administrative assistant, Respondent was assigned to the criminal investigation division where he was in charge of the youth section. This was Respondent's position when he left the Orlando Police Department in the middle of 1986. In early 1985, Respondent met Donna Jackson while he was working off- duty. At this time, Respondent and his wife had been separated since late 1983 or early 1984. After the initial meeting and before any additional encounters, Respondent ran a background check on Ms. Jackson and found that she had been on probation about three years earlier for possession of a controlled substance. When Respondent informed Ms. Jackson that her background precluded any relationship due to his employment, she began crying and told him that she had been trying to put her life back in order. That evening, Respondent and Ms. Jackson commenced an intimate relationship. A few months into the relationship, Respondent learned that Ms. Jackson had been misleading him and was not trying to get her life back together. By August or September, 1985, the relationship began to deteriorate. Ms. Jackson began to consume alcohol heavily and having male visitors late at night. Respondent and Ms. Jackson began to fight. The domestic disputes occasionally involved some physical contact, but the contact was insubstantial. One evening, Respondent and Ms. Jackson had gone to a nightclub in Seminole County where they met a woman who invited them to a party at her residence. As they began to leave the parking lot of the nightclub, Ms. Jackson and the woman lit up a marijuana cigarette. Respondent immediately objected and insisted that he and Ms. Jackson go home, which they did. However, Respondent, who lacked the power to arrest Ms. Jackson and the woman because it was a misdemeanor outside of his jurisdiction, did not report the incident to the Seminole County Sheriff's Office. At this point, Respondent learned from Ms. Jackson's mother the severity of her past drug problems. Respondent broke off the relationship at this point, expressing a desire to remain friends only. By April, 1986, Respondent had not seen Ms. Jackson for a couple of months. Ms. Jackson's mother telephoned and told him that Ms. Jackson had taken a turn for the worse and had lost her apartment. Ms. Jackson, who was abusing drugs heavily again, and her young daughter were living on the streets. Ms. Jackson's mother begged Respondent to help them. At about this time, Ms. Jackson had been arrested in Orlando for driving without a license. She had asked that one of the officers contact Respondent. When he spoke with Ms. Jackson, Respondent assured her that he would try to help her as a friend. Released before her court appearance, Ms. Jackson failed to appear in court. Having spoken with Ms. Jackson's probation officer about the possibility of admitting her into a rehabilitation program, Respondent informed Ms. Jackson that he would arrest her if he saw her driving because he knew she no longer had a license. Respondent and the probation officer thought that such an arrest might help them find a place for Ms. Jackson in a program. Respondent later saw her driving an automobile, arrested her, and contacted her probation officer about placing her in a program. However, she bonded out, of jail before they could do anything. Shortly after Ms. Jackson was released from jail, the probation officer caused an arrest warrant to be issued for Ms. Jackson for violation of the conditions of her probation. Again, the intent was to use this means to find her a place in a rehabilitation program. The morning that the violation-of probation warrant was issued, which was on or about September 23, 1986, Ms. Jackson's mother telephoned Respondent and told him that she knew where Ms. Jackson was. At that point, the probation officer informed Respondent that a facility had a bed available for Ms. Jackson if they could detain her involuntarily. Respondent immediately found Ms. Jackson and arrested her. A minor scuffle occurred between Respondent and a female companion of Ms. Jackson, and Respondent soiled and tore his suit. Respondent then began to transport Ms. Jackson in an unmarked vehicle to the booking department. After learning that they did not yet have the violation-of-probation warrant, Respondent pulled the car over and he and Ms. Jackson began to talk about why she had refused his help. Ms. Jackson then asked if Respondent would take her to see her mother before taking her to jail. Although they were near the booking department at the time and Ms. Jackson's parents lived 5-10 miles away, Respondent agreed to take her to see her mother before going to jail. While at the parents' home, Respondent, who is a careful dresser, noticed for the first time the condition of his suit as a result of the earlier scuffle. When they left the parents' home, Respondent decided to drop by his apartment in order to change his clothes before taking her in for booking. While at the apartment with Ms. Jackson, Respondent was unable to resist her entreaties to have sex with her one more time. Following sex, he took her to the booking department where she was processed on the violation-of- probation warrant. Upset that Respondent had arrested her and refused to let her go, on October 9, 1986, Ms. Jackson falsely accused Respondent of raping her when they had intercourse in his apartment on the day of her arrest. Respondent cooperated fully with the internal investigation and candidly answered all questions asked of him. He resigned from the Orlando Police Department at that time. Shortly after this incident, Respondent began to see his estranged wife again and, about two or three months later, they were reconciled. Until Ms. Jackson's false charges were resolved, Respondent worked as a salesman for Cablevision of Central Florida where he quickly emerged as one of the top three sales representatives. He also underwent extensive counselling with his pastor at church and other ministers. Several of the ministers testified at the hearing as to Respondent's good moral character, notwithstanding the obvious mistakes he made with respect to his relationship with Ms. Jackson. The state attorney declined to prosecute the case and the charges were dropped in June, 1987 Respondent immediately began applying to other police departments for a position as an officer. After several unsuccessful attempts, he finally was offered an entry-level officer's position with the Titusville Police Department. Although he had made about $37,000 during the past ten months as a salesman, he agreed to an $18,000 annual salary with the Titusville Police Department because of his love for law enforcement. Respondent is currently assigned to the tactical unit of the Titusville Police Department. His record has been exemplary. His performance under pressure, including on one occasion the fatal shooting of another officer, has been outstanding, and he has assumed a significant leadership role among the officers in the department. Numerous law enforcement officers testified on behalf of Respondent. Several testified that domestic disputes of the type in this case are not uncommon among law enforcement officers. Several testified that they would have done nothing under the circumstances had they observed Ms. Jackson and the other woman smoking marijuana outside of their jurisdiction. The testimony of three witness has been given considerable weight. Ms. Jackson's parents testified to her manipulativeness and, more importantly, the positive effect that Respondent had had upon her. Regrettably, they testified that she has not recovered from her battle with drug abuse and they were, at the time of the hearing, unaware of where she was living. Titusville Police Chief Charles Ball, who has been in law enforcement for over 20 years and chief of the department for 10 years, testified that the revocation of Respondent's certificate would represent a loss to the Titusville Police Department and law enforcement generally. Chief Ball testified that Respondent is of good moral character, even considering the poor judgment described above.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 9th day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Stewart Cohen, Esq. Pilacek & Cohen 1516 East Hillcrest Street Suite 204 Orlando, FL 32803 Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin, Executive Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esq. General Counsel Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF 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 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether the Respondent has failed to maintain good moral character.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards Training Commission as a correctional officer on March 21, 1985, and issued Certificate No. 04-85-599-01. At the time of the events which form the basis for the Administrative Complaint, the Respondent was employed as a correctional officer at the Marion Correctional Institution, a correctional facility of the State Department of Corrections. Marion County Sheriff's Deputies, David F. Faircloth, Jr. and Art King, are veteran law enforcement officers who have received training in the detection and recognition of controlled substances, to include marijuana. Both officers have made numerous arrests for the possession of a controlled substance which they suspected was marijuana and which, upon being tested, proved to be marijuana On June 9, 1990, while on regular patrol in Marion County, Florida, Deputy David F. Faircloth, Jr. was directed to investigate an anonymous report of a male and female who had been observed fighting in a white Camaro automobile parked on U.S. Highway 27. While in that vicinity in response to that request, Officer Faircloth responded to a complaint of a disturbance at 1261 N.W. 56th Court, Ocala, Florida. When Deputy Faircloth arrived on the scene, he noticed a white, two-door Camaro. Deputy Faircloth determined upon investigation that the Respondent and Linda Altman, who lived at the address, had engaged in an altercation involving their respective vehicles which were both damaged and parked in the front yard. Both the Respondent and Ms. Altman had been drinking and both were upset. Deputy King was dispatched as a backup and arrived at the Altman residence. Upon his arrival, Deputy King was briefed by Deputy Faircloth, who advised him that both the Respondent and Ms. Altman had been drinking, both were angry with one another, both had engaged in some altercation involving their vehicles which had caused damage to both vehicles, and both were correctional officers. Pursuant to their standard operating procedure, the deputies separated and interviewed separately the Respondent and Ms. Altman. Deputy King talked to the Respondent and Deputy Faircloth talked to Ms. Altman. Deputies Faircloth and King determined that the white Camaro parked at the location belonged to the Respondent. Deputy King stated that he intended to permit the Respondent to leave the scene; however, he was concerned that the Respondent, being a corrections officer, might have a weapon in his vehicle and return to cause more trouble. This testimony is logically inconsistent because if the Respondent had a gun and was released, he could retrieve the gun and return. However, it was on this basis Deputy King asked the Respondent if he could search his vehicle. The Respondent consented to the search of his vehicle by Deputy King. Officer King began his search of the vehicle in the front driver's seat. As Deputy King was leaning into the vehicle, conducting his search, the Respondent leaned over his back into the rear of the automobile and removed a shaving kit from the back seat. The Respondent's unanticipated action startled deputy King, who turned and inquired of the Respondent what he was doing. The Respondent, through words and gestures, indicated to Deputy King that he did not want him to search the shaving kit. The Respondent told Deputy King that there were no guns in the kit; but when Deputy King persisted in being permitted to search the kit, the Respondent indicated that he would open the kit and show Deputy King its contents. When the Respondent unzipped and opened the kit, Deputy King observed at the top of the kit a plastic bag containing dried vegetable matter which Deputy King thought to be marijuana. Deputy King seized as contraband the contents of the plastic bag, and upon administration of a field test for controlled substances, he determined that the substance was marijuana. Deputy King arrested the Respondent, and conducted a search of the Respondent's vehicle where he found a portion of a partially-smoked marijuana cigarette and a device which appeared to be some type of smoking device. The bag of marijuana which Deputy King seized from the Respondent's shaving kit was sent to the Florida Department of Law Enforcement crime laboratory for analysis. The crime laboratory concluded that the plastic bag contained 4.7 grams of cannabis or marijuana. One cannot determine from the report whether the burnt cigarette was tested and determined to be marijuana. Although Deputy King filed charges against the Respondent, the charges were later dismissed by the prosecutor for reasons unknown to Deputies King and Faircloth.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.
Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for consideration in this case is whether Respondent's certification as a law enforcement officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the CJSTC was the state agency responsible for the certification of law enforcement officers in Florida. Respondent was certified by the CJSTC on May 21, 1982, holding law enforcement certificate number 105625. On November 7, 1997, the Tampa Police Department's Street Anti-Crime Squad initiated one of its periodic routine reverse prostitution stings at the intersection of Crawford and Nebraska Avenues in Tampa. Officer Dana Berry, a female police officer, played the part of the prostitute. Located in an unmarked police car across the intersection, also in civilian dress, was the "eyeball," Sergeant Russell Marcotrigiano, Officer Berry's supervisor. Officer Berry was to wait to be approached by a male customer, and when that happened, was to agree to an assignation for money. Without doing anything in furtherance thereof, if the customer agreed, she was to direct him to room 8 of the El Rancho Motel, down the block on Nebraska Avenue. Her pointing to the motel was the signal to Sergeant Marcotrigiano that a deal had been made. If the customer went to the motel, he would be arrested there. If he did not and drove away, the offense was in the solicitation and the customer would be arrested in a routine traffic stop within two blocks of the site. Sergeant Marcotrigiano was there to coordinate the sting, and even more important, to safeguard the welfare of Officer Berry. Parked in a marked patrol car about two blocks north on Nebraska Avenue were two uniformed officers, Officer Stephen Prebich and Officer MacFarlane, who, upon the direction of Sergeant Marcotrigiano, were to arrest the perpetrator in the routine traffic stop. The sting operation started at approximately 1:45 p.m. on November 7, 1997. At approximately 2:06 p.m., Respondent, driving a green pickup truck, stopped at the intersection in question and made eye contact with Berry, who was standing near a parking lot close-by. Immediately upon contact, Berry came over to the driver's side of Respondent's vehicle and asked if he was lost. Berry did not recognize Respondent as a police officer though there is some evidence, and Respondent so claims, that they had met at work on a previous occasion. Respondent denied being lost and asked Berry if she needed a ride. Berry indicated that she had a room at a nearby motel where they could go, but not without knowing what Respondent wanted. She had been instructed not to mention a sexual act but to wait until the subject first described the requested sexual act. Ultimately he said "a blow-job," and when Berry asked him how much money he had, he replied either "twenty," as Berry claims, or "plenty," as Respondent claims. At this point, considering the deal made, Berry directed Respondent to the motel and pointed to it. This was the signal to Sergeant Marcotrigiano that Respondent should be arrested. Instead of going to the motel, Respondent drove off, turning right onto Nebraska Avenue, heading north. Within two blocks, he was pulled over by Officers Prebich and McFarland. Both officers went to Respondent's vehicle, accompanied by two other officers. Weapons were not drawn. When the officers got to Respondent's vehicle, Officer Prebich opened the driver's door and requested he get out of the vehicle. When Respondent complied, he was placed under arrest. At this point, Officer Prebich did not recognize Respondent. However, it appears that Officer MacFarlane did recognize him. While Respondent was being searched, a pay stub was discovered which indicated that Respondent was a police officer. The arresting officers took Respondent back to the command post where Sergeant Marcotrigiano and Officer Berry were waiting. At this point, Respondent was asked where he worked and replied, "tactical." Prebich claims he did not say much to Respondent at that time. He states he may have mentioned Berry's name to Respondent but does not believe he did so. Officer Politano was working at the command post at this time, writing up paper work on the prostitution sting and monitoring the radio. He recalls Respondent being brought into the command post under arrest. Sergeant Marcotrigiano spoke with Respondent and instructed Politano to take down the names of the parties. In the course of doing this, Politano spoke with Respondent who told him he knew Officer Berry and her former supervisor, Sergeant Raulerson, and was just playing with Berry when he made the statements attributed to him by her. Politano contends that it is quite common for police officers to tease undercover operatives who are on duty, including women. This teasing, however, is usually confined to cat-calls and whistles, and he has never heard of a proposition such as was involved here in a stake-out situation. Respondent admits to a conversation with Officer Berry at the location in issue on the afternoon of November 7, 1997. However, he denies having driven past Berry's location twice before stopping to speak with her. Both Berry and Sergeant Marcotrigiano claim he did, however, and neither would have any reason to dissemble. Further, Respondent contends that he could not have been at the intersection at 2:06 p.m. as indicated by Berry and the sergeant. He claims to have left his credit union on Bearss Street after 1:45 p.m., and considering the state of traffic, could not have traveled the 8.9 or so miles between the credit union and the intersection of Crawford and Nebraska Avenues, gone around the block twice as alleged, and still have had the conversation with Berry in time to be arrested at 2:06 p.m. There are several collateral matters to consider regarding the time issue. In the first place, Respondent contends that the accuracy or lack thereof is indicative of the non-credibility of the arrest report. However, no independent evidence was introduced to show that the time stamp on the credit union transaction ticket, showing 1:45 p.m., is accurate. Regardless, Respondent admitted to a version of the reported conversation between him and Berry, and it is that conversation and the circumstances which surround it, not the exact time, which is important. Respondent categorically denies having seriously solicited Officer Berry for an act of oral sodomy. He claims that while driving in the vicinity, searching for a shop to reasonably detail his relatively new truck, he spotted her on the sting. They made eye contact and, he claims, she nodded at him. Since he recognized her from work, he thought she recognized him as well. She did not, though he had seen her on several occasions at the police station where he would go frequently. Respondent claims he noticed Officer Berry when he stopped for a traffic light at the intersection, and while he was waiting for the light to change, she came up to his truck and asked him if he was lost. Thereafter, the conversation progressed as previously indicated, though Respondent claims to have said "plenty" rather that "twenty" in response to her query as to how much he had. He claims he had no intention to have any sexual contact with Berry and drove off, heading north on Nebraska Avenue, when she pointed to the motel. When questioned by Sergeant Marcotrigiano at the command post, Respondent claims he indicated that he thought Berry had recognized him as he had recognized her, and was just "fucking around." Respondent related this same story to Captain Doyle, the supervisor, but such crass verbalization without an indication he was kidding makes Respondent's claim unbelievable. In July 1997, Respondent and the CJSTC entered into a Stipulation and Settlement Agreement in the Commission's case number L-3388 whereby Respondent's certificate was suspended for 80 hours, and he was placed on probation for a period of one year after reinstatement of his certificate. The documentation of record does not indicate the basis for that action. During May 1999, Respondent, through counsel, filed a motion to dismiss the criminal charge of soliciting for prostitution which had been filed against him in Hillsborough County Court. On June 14, 1999, the motion to dismiss was granted and Respondent was discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certification as a law enforcement officer. DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1999. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire Police Benevolent Association 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
The Issue Case Number 91-8116EC: Whether the Respondent, Fred Peel, violated Section 112.313(6), Florida Statutes: (1) by failing to have complaint review procedures in place in his office as required by Section 112.533(1), Florida Statutes; (2) by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report; and (3) by attempting to charge $5.00 for copy of the arrest report? Case Number 91-8323EC: Whether the Respondent, John Jenkins, violated Section 112.313(6), Florida Statutes, by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report?
Findings Of Fact The Respondents. The Respondent, Fred Peel, is the Sheriff of Washington County, Florida. (Stipulated Fact). Sheriff Peel has continuously served as the Sheriff of Washington County for the past fifteen years. (Stipulated Fact). Sheriff Peel is an elected official. (Stipulated Fact). At all times relevant to this proceeding, Sheriff Peel served as a public officer subject to Section 112.313(6), Florida Statutes. The Respondent, John Jenkins, is a captain with the Washington County Sheriff's Department. (Stipulated Fact). Captain Jenkins has continuously served with the Sheriff's Department for ten years. (Stipulated Fact). Captain Jenkins was appointed by Sheriff Peel pursuant to Chapter 30, Florida Statutes. (Stipulated Fact). At all times relevant to this proceeding, Captain Jenkins served as a public officer subject to Section 112.313(6), Florida Statutes. The Arrest of the Complainant. The complainant, Timothy Hinson, was arrested by a deputy of the Washington County Sheriff's Office on November 26, 1990. Mr. Hinson was charged with driving under the influence, driving while license suspended or revoked and refusal to sign citation. (Stipulated Fact). At the time of his arrest, Mr. Hinson was intoxicated. Mr. Hinson's speech was slurred, his appearance was disheveled and his ability to understand verbal communication was poor. After being arrested and transported to the Washington County jail, Mr. Hinson made profane and abusive threats addressed to the arresting deputy and the "Sheriff". Mr. Hinson threatened to have the "Sheriff" removed. Mr. Hinson did not know who the Sheriff was at the time. Mr. Hinson's actions, failed to prove, as suggested by the Respondents, that Mr. Hinson had a vendetta against the Respondents or law enforcement personnel in general. This evidence merely proved that Mr. Hinson was drunk. The parties stipulated that, prior to his arrest on November 26, 1990, Mr. Hinson had been arrested six times since 1983. This evidence failed to prove, however, the Respondents' contention that Mr. Hinson had a grudge or vendetta against the Respondents or law enforcement personnel in general. This evidence suggests that Mr. Hinson has a drinking problem. Mr. Hinson's Effort to Obtain a Copy of His Arrest Record. Just prior to noon on December 28, 1990, Mr. Hinson went to the Washington County Sheriff's offices. Mr. Hinson went to the Sheriff's offices with the intent to obtain a copy of the records related to his arrest on November 26, 1990. (Stipulated Fact). Mr. Hinson was met in the lobby of the Sheriff's offices by Sharon Bellamy, an employee of Sheriff Peel. Mr. Hinson informed Ms. Bellamy that he wanted a copy of his arrest record. Mr. Hinson informed Ms. Bellamy that he needed a copy of the documents for his defense. Ms. Bellamy retrieved Mr. Hinson's file from the office where records were kept and brought it to the lobby to make the copies requested at a copy machine located in the lobby. There were two documents in the file that Mr. Hinson requested: the complaint and the arresting report. As Ms. Bellamy began to make a copy of the documents Mr. Hinson had requested, she found a copy of another document that had been mailed to Mr. Hinson that he had not requested. The document was a notice to Mr. Hinson that his Florida drivers' license had been suspended for refusing to take a breath test. Ms. Bellamy began quizzing Mr. Hinson about whether he had received the document. Although Mr. Hinson had in fact received the notice Ms. Bellamy asked him about, he told her he had not and requested a copy of it. Ms. Bellamy continued to ask Mr. Hinson about the notice. The conversation between Mr. Hinson and Ms. Bellamy became more agitated, although the evidence failed to prove why. Pam Miner, the Sheriff's secretary, was in an office next to the lobby. The door opening into the lobby was open and Ms. Miner overheard Ms. Bellamy and Mr. Hinson. Sheriff Peel was sitting in his office, which adjoined Ms. Miner's office. The door opening into Ms. Miner's office was also open and he could also hear the discussion. At some time after Ms. Bellamy began discussing the notice concerning Mr. Hinson's driver's license with him, Ms. Miner went to the door of Sheriff Peel's office and gave him a look which she described as intended to convey to Sheriff Peel that "you need to do something". After Ms. Miner looked into Sheriff Peel's office, he went out into the lobby. Sheriff Peel initially watched what was going on. At some point shortly after Sheriff Peel went into the lobby he asked Mr. Hinson some questions about Mr. Hinson's driver's license. Mr. Hinson informed Sheriff Peel that he had a Maryland driver's license. At some point during the discussion between Sheriff Peel and Mr. Hinson, Mr. Hinson indicated that he was seeking a copy of the documents in his file for his attorney. Sheriff Peel suggested that Mr. Hinson have his attorney get the copies. The discussion between Mr. Hinson and Sheriff Peel became more heated and argumentative. Eventually Sheriff Peel told Ms. Bellamy to "charge him $5.00" and started to leave. Mr. Hinson perceived this comment to mean that he was to be charged $5.00 per page or document. Prior to coming to the Sheriff's office to obtain copies of the documents in his file, Mr. Hinson had telephoned the Sheriff's office and had been told that there was a $2.00 copying charge. Two dollars is, in fact, what the Sheriff's office normally charges for copying documents. Mr. Hinson believed, therefore, that he would be charged $2.00 per document or a total of $4.00 for the documents he had requested. When Mr. Hinson heard the Sheriff indicate that he was to be charged $5.00, he became angry because he believed that Sheriff Peel was suggesting that he be charged $5.00 per copy or $5.00 per page. Such a charge was inconsistent with what he had been previously told about copying charges. Mr. Hinson incorrectly believed that Sheriff Peel was going to charge him the higher rate for copying because he had a Maryland drivers' license and was, therefore, apparently not from Washington County. Mr. Hinson confronted Sheriff Peel by stating that he had been told that the copying charge was only $2.00 a copy. Sheriff Peel, if he had meant to charge Mr. Hinson a total of $5.00 as suggested during the final hearing, did not clarify that he was only going to charge him a total of $5.00 instead of $5.00 per copy as Mr. Hinson apparently believed. The failure to clarify what he meant, and the fact that Sheriff Peel did not know how many documents were actually involved, support the conclusion that Sheriff Peel did not intend that Ms. Bellamy merely charge Mr. Hinson a total of $5.00. Of greater importance, these facts explain Mr. Hinson's confusion and anger. He reasonably believed he was going to be overcharged. Some time after Mr. Hinson confronted Sheriff Peel about the $5.00 charge, Sheriff Peel told Ms. Bellamy not to give Mr. Hinson anything. Mr. Hinson confronted Sheriff Peel, although he did not know at the time that he was the Sheriff, and asked him "what's the problem." Mr. Hinson also asked for the person in charge of "internal affairs", stating that he wanted to file a complaint against Sheriff Peel. Sheriff Peel informed Mr. Hinson that the Sheriff's Office did not have an "internal affairs" department, that he was the Sheriff, and that he would not take a complaint against himself. The Washington County Sheriff's Office has no written policy for handling complaints against personnel. The Washington County Sheriff's Office has an informal, unwritten policy for handling complaints. Sheriff Peel makes the final decision concerning complaints. At some time shortly after Sheriff Peel and Mr. Hinson began to argue, Captain Jenkins came to the door opening to the lobby from the room that he had been in. Initially, Captain Jenkins stood watching the discussion. Because of the smallness of the room, Captain Jenkins was relatively close to Mr. Hinson. After Sheriff Peel informed Mr. Hinson that there was no internal affairs department and that he would not take a complaint against himself, Captain Jenkins stated "I'm internal affairs this week. What's the problem?" or a statement to that effect. Although Captain Jenkins testified that he made the comment to try to diffuse the situation by injecting some humor into the situation, the weight of the evidence does not support this explanation. The weight of the evidence supports a conclusion that the comment was made in a snide and sarcastic manner. Mr. Hinson was being rude and confrontational. Sheriff Peel and Mr. Hinson were engaged in a somewhat heated argument. Mr. Hinson was obviously angry. To make such a statement to a person in this type situation evidenced a failure to exercise good judgement. The statement was intended to rebuke and insult Mr. Hinson. Mr. Hinson demanded that Captain Jenkins identify himself, which he did. Mr. Hinson told Captain Jenkins that he wanted to file a complaint against Sheriff Peel. Captain Jenkins told him that he would not take a complaint against the Sheriff. Captain Jenkins told Mr. Hinson that it would be better if he left the office. It was apparent to Mr. Hinson that nothing more could come of the confrontation with Sheriff Peel and Captain Jenkins. Sheriff Peel had ordered that nothing be given to Mr. Hinson. Sheriff Peel and Captain Jenkins had refused to take a complaint. It had been suggested that he leave. Mr. Hinson felt intimidated. Captain Jenkins is 6'1" and weighs approximately 225 pounds while Mr. Hinson is slightly built in comparison. There was nothing to be gained by continued argument and, therefore, Mr. Hinson left. Mr. Hinson was not intoxicated or taking medication at the time of his visit to the Sheriff's offices. Mr. Hinson's attitude and demeanor with Ms. Bellamy was defensive and confrontational. Mr. Hinson's displeasure over his arrest and his attitude were perceived as rudeness by Ms. Bellamy. Although Mr. Hinson did not yell or use profanity, as described by Ms. Bellamy, Mr. Hinson "had an attitude". These findings are based in large part upon the testimony of Ms. Bellamy, Pam Miner (the Sheriff's secretary) and David Corbin, the Director of Washington County Parks and Recreation. Mr. Corbin was in the lobby during the confrontation. Although Ms. Bellamy and Ms. Miner are employed by Sheriff Peel, and the fact that Ms. Bellamy was not totally candid in her testimony, the crucial elements of the testimony of the Respondents and these witnesses were consistent. It is difficult to categorize the degree of Mr. Hinson's rudeness. All of the witnesses agreed Mr. Hinson was rude and confrontational. His rudeness and attitude were not, however, so severe that Ms. Bellamy did not believe that she could handle Mr. Hinson. Nor did Ms. Bellamy ever feel threatened by Mr. Hinson. She did not request any assistance from Sheriff Peel or Captain Jenkins, both of whom were in adjoining offices. Nor was Mr. Hinson's attitude and treatment of Ms. Bellamy sufficiently troublesome to cause Captain Jenkins, who could hear the discussion between Ms. Bellamy and Mr. Hinson, to come out to assist Ms. Bellamy until after Sheriff Peel had intervened. Finally, Ms. Bellamy left the lobby during the confrontation to prepare to go to lunch, not something that would be expected of someone witnessing an overly serious confrontation. Sheriff Peel and Captain Jenkins did not yell at Mr. Hinson. Nor did they laugh at Mr. Hinson. Sheriff Peel did, however, become angry and argumentative with Mr. Hinson. The situation could have been ended by simply allowing Ms. Bellamy to provide the copies of the documents Mr. Hinson had requested, which had already been made. Captain Jenkins was sarcastic with Mr. Hinson and, to some degree, because of his size, intimidating to Mr. Hinson. Captain Jenkins' comment to Mr. Hinson, although sarcastic, was not threatening. Mr. Hinson, based upon 20-20 hindsight, was not a threat to anybody in the Sheriff's offices. This is not to say, however, that Mr. Hinson should have been taken lightly or that Mr. Hinson's conduct should have been totally accepted and tolerated by Sheriff Peel. Nor can it be concluded that Captain Jenkins should have totally ignored what was going on. Effort to Secure a Special Privilege, Benefit, or Exemption. The weight of the evidence failed to prove that the failure to have a written complaint procedure in place in the Washington County Sheriff's Office was intended by Sheriff Peel to secure a special privilege, benefit or exemption. Mr. Hinson, after telephoning the Florida Sheriff's Association, was informed that he could pick up a copy of the documents he wanted at the Sheriff's offices. Mr. Hinson also could have obtained a copy of the documents he wanted by having someone else, including his attorney, pick them up or by requesting a copy of the documents from the clerk of court's office. The weight of the evidence failed to prove that Sheriff Peel was attempting to intimidate Mr. Hinson into leaving the Sheriff's offices without obtaining a copy of the documents he had requested in order to secure a special privilege, benefit or exemption. Any funds collected for copying by the Sheriff's Office are funds of Washington County. Sheriff Peel has no control or direct use of those funds. The weight of the evidence failed to prove that Sheriff Peel was attempting to charge $5.00 for the copies in an effort to secure a special privilege, benefit or exemption. The weight of the evidence failed to prove that Captain Jenkins' actions were intended to intimidate Mr. Hinson into leaving the Sheriff's offices in order to secure a special privilege, benefit or exemption. At worst, the evidence proved that Sheriff Peel, arguably, could have exercised a little more patience and that Captain Jenkins made a smart remark at an inappropriate time. These actions, in light of Mr. Hinson's attitude and demeanor, do not support a conclusion that Sheriff Peel or Captain Jenkins were attempting to secure a special privilege, benefit or exemption for themselves or others. The actions of all those involved in this situation were emotional reactions to the situation and were not calculated to achieve any particular result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report dismissing Complaint No. 91-42 and Complaint No. 91-43. DONE and ENTERED this 19th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 19th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1-2. 2 3. 3 5. 4 6. 5 7. B. 1 9. 2 10. C. 1 23. Hereby accepted. Conclusion of law. D. 1 28-30. 2 29. 3 30. E. 1 13. 2 36. 3 14 and 23. 4 14-15. 5 14. 6 17 and hereby accepted. 7 See 37. 8 See 37-38 and 40. Ms. Bellamy's relationship to the Respondents has been considered. While it is true that Ms. Bellamy was not totally candid, the weight of the evidence failed to prove that Ms. Bellamy's testimony was materially flawed, especially in light of the testimony of other witnesses. 9-10 Not supported by the weight of the evidence. 11 See 41. The evidence failed to prove that "no reasonable person could have perceived Mr. Hinson as posing such a danger." Such a conclusion can only be made with 20-20 hindsight. 11a-b 38. 11c 19. 11c 31 and 38. 12 20-21 13 21 and see 26. 14 27. 15 28. 16 Not relevant. 17 22. 18 22-24. 19 25. 20 See 31. 21-22 32. The last sentence of proposed finding of fact 22 is not supported by the weight of the evidence. 23 33. 24 34. 25 35. See 35. See 37-40. The last three sentences are not supported by the weight of the evidence. See 25. The Respondents' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 See 11. 3 13-14. 4 15 and 17-19. 19, 21 and 37-38. The allegations concerning whether Mr. Hinson became "loud" are rejected as not supported by the weight of the evidence. See 27. The evidence failed to prove that Sheriff Peel "explained to Hinson that he had a small office" in an effort to explain why he did not have an internal affairs department. The Respondents' suggestion that Mr. Hinson was out of control is not supported by the weight of the evidence. See 31 and 33. The weight of the evidence failed to prove that Captain Jenkins suggested that Mr. Hinson go to the State Attorney's office if he wanted to file a complaint. See 22. The weight of the evidence failed to prove that Sheriff Peel was aware of how many pages were to be copied, that Mr. Hinson left after being told that the charge was $5.00 or that Mr. Hinson was not told to leave. 23 and hereby accepted. 10 16, 18 and 23. 11 45. 12 28-30. See 31. Hereby accepted. See 47. The last two sentences are not relevant. 16 See 24-25, 38-39 and 48. 17 42. 18 See 12. The last sentence is not supported by the weight of the evidence. 19-24 Although portions of these proposed findings of fact are true, the ultimate findings of fact suggested by these proposed facts are not supported by the weight of the evidence. For example, although it is true that Mr. Hinson admitted that he had a bad memory, the essential elements of his testimony were credible. 25 41-47. The last two sentences are not supported by the weight of the evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 William E. Powers, Jr., Esquire Post Office Box 12186 Tallahassee, Florida 32317-2186 Bonnie J. Williams Executive Director Commission On Ethics The Capitol Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
