The Issue Whether or not on or about August 23, 1975, Carole Sanders, licensed under the beverage laws as a licensed vendor, did employ, on her licensed premises persons under the age of 18. to wit: Margie Johnson, W/F, DOB: 11/12/60, age 14, address: Homosassa, Florida, and Mrs. Fawn Hetland, DOB: 5/22/59, age 16, address: Sindpiper Motel, Room #38, Clearwater, Florida, contraty to Florida Statute 562.13. Whether or not on or about August 23,1975, Carole Sanders, licensee, her agent, servant, or employee, did allow procuring for the purpose of prostitution on her licensed premises, contrary to Florida Statutes 796.07(3)(A) and 561.29. Whether or not on or about August 23, 1975, Carole Sanders, licensee, or her servant, employee or an agent, did allow a person under the age of 18 to consume alcoholic beverages on her licensed premises, to wit: Margie Faye Johnson, W/F, DOB: 11/12/60, contrary to Florida Statue 562.11.
Findings Of Fact The Petitioner began its presentation by offering into evidence a copy of the amended notice to show cause, together with the notice of hearing, which became Petitioners Exhibit #1 which was admitted without objection. The Petitioner also presented a copy of the license of the Respondent, which was allowed into evidence without objection, as Petitioner's Exhibit #2. Petitioner then called Margie Faye Johnson to the stand. Miss Johnson testified that she was 15 years old as of November 12, 1975. She now lives with her mother at Homasassa, Florida, but in August, 1975, she was a runaway. While away from home, the witness went to the establishment of the Respondent, to wit, Charlie's Beach Bar and applied for a job as a topless dancer. At that time the witness was 14 years old. She had been told about this job by one Fawn Hetland, an acquaintance she had met two weeks prior to applying for the job. The job application was made sometime in August, 1975, three or four days prior to certain arrest warrants were served on Charlie Sanders, the husband of the Respondent. These warrants were served on or about August 23, 1975. The process of the hiring of Margie Johnson was described by her in the following fashion She said she asked Charlie Sanders about being a dancer in his bar and that he interviewed her and asked her to dance, after which she was hired as a topless dancer in the bar. During the course of the hiring procedures the witness testified that she was never asked for an identification card of any kind. She did say that she signed a writing presented to her by Carole Sanders, which was something to do with taxes. This writing spoken of was admitted as Petitioner's Exhibit #3, without objection. According to the witness, Charlie Sanders was responsible for hiring her as opposed to the Respondent, Carole Sanders. The night the witness was hired, in addition to neglecting to ask for an identification card, for some identification of her age, the witness indicated that she never saw anyone call for references concerning her age. She felt that she would have observed such a call because the phone was near the area in which she was located. During the course of her employment for the three or four days, Margie Johnson indicated that she danced topless, served alcoholic beverages, and consumed alcoholic beverages, and also worked the cash register. On the night that the arrest was made of Charlie Sanders, which would have been August 23, 1975, the witness was found in possession of a mug of beer. The mug itself is Petitioner's Exhibit #6 which was admitted without objection, after a stipulation had been entered into concerning the chain of custody of the beer mug and a stipulation that the mug contained an alcoholic substance, to wit, beer. Margie Johnson was arrested, by her statement, for drinking on the premises and being in an adult bar. Other activities concerning Margie Johnson while she was working for the Respondent, included a request by Charlie Sanders that she prostitute herself for an older man, whom she said was in the conversation, but whose name she does not know. The witness indicated that Charlie Sanders actively participated in this procurement situation by asking her if she had done any prostituting and asking her if she would like for him to set her up. The witness also indicated that Charlie Sanders propositioned her to go to bed with him, evidently for purposes of having sexual relations. To the witness's knowledge, Mrs. Sanders was not involved in any procurement for prostitution. Margie Johnson had also worked at two other topless lounges in the area to include the Savoy Lounge and the Stock Market. While working at the Savoy Lounge she said she had shown a birth certificate which had been given to her by some "chick and a guy" who picked her up. This birth certificate indicated that she was 22 years old. She had been requested to show proof of age at the Savoy Lounge and had shown the phony birth certificate, but she said she never showed any identification of age at the Stock Market. The Stock Market proprietors had asked her for proof of age but she had indicated that she would bring that proof in and never did. While at Charlie's Beach Bar, the witness stated that she never was questioned about her age. An effort was made to develop the fact that the witness worked in bars other than the bars spoken of, this was objected to and the objection was sustained because it was not felt that further development of the issue was material or relevant. Finally, the witness indicated that Charlie Sanders had told her the night they were arrested, that if she was not 18 years old that he was going to kill her. At present the witness is not in immediate contact with the Respondent or any employees at-Charlie's Beach Bar. John T. McMullen, agent for the Division of Beverage, testified that he assisted in serving a warrant issued to the Indian Rocks Police Department for August 23, 1975. This warrant was served around midnight on that date and when the witness entered Charlie's Beach Bar with the warrant party he noticed that Margie Johnson was sitting with a beer mug in her hand and that mug contained beer. This beer mug has been identified as Petitioner's Exhibit #6. When Officer McMullen approached Margie Johnson, because he felt she was under age, she stated that she was 18 and had been born in 1953. Later she admitted that she was a juvenile. Officer McMullen later returned to the bar around 1:15 A.M. on August 24, 1975, and picked up certain records from the Respondent, Mrs. Sanders. Part of these records have been admitted into evidence as Petitioner's Exhibit #5, admitted with objection. The witness testified that Mrs. Sanders told him that she had hired Margie Johnson because she knew the girl Fawn Hetland and because Margie Johnson had indicated that she was 18 years old and had worked at the Stock Market Bar. Consequently, according to Mrs. Sanders, she presumed these things to be so. Officer McMullen went back to the bar on a third occasion around 12:45 P.M. on September 3, 1975 at which time a citation for beverage violations was served upon the Respondent. At that time the witness stated that he read the citation to Carole Sanders and she told him she couldn't go and not plead guilty to the citation, because she had hired Margie Johnson and that her husband had hired Fawn Hetland and that they knew the girls were minors. Beverage Agent Woodrow Ray took the stand and testified essentially the same way as Officer McMullen, about the facts surrounding the service of the warrant on August 23, 1975, at Charlie's Beach Bar. Officer Ray also went back to get records In the early morning hours of August 24, 1975. He indicated the receipt of Petitioner's Exhibit #5 from Carole Sanders and stated that he had given her a receipt in return which is admitted into evidence as Petitioner's Exhibit #4, without objection. *A more complete description of the objection to the introduction of Exhibit #5 will be discussed in the section of this order entitled CONCLUSIONS OF LAW. Officer H. C. Adams of the Indian Rocks Police Department, testified that he was involved in serving the warrant on Charlie Sanders at Charlie's Beach Bar on August 23, 1975. He had seen Margie Johnson drinking the beer which was in Petitioners Exhibit #6, and had removed the beer mug and contents from Margie Johnson. The Petitioner called Jack Lewzader to the stand. Before Mr. Lewzader testified, the Petitioner offered to amend count 2 of the amended information by changing the date of August 23, 1975, as reflected, to the date of August 16, 1975. The Respondent was offered the right of a continuance since there had been a change in count 2; however, the Respondent indicated that he was sufficiently prepared to defend the charges reflected in count 2 and the testimony of Jack Lewzader was taken. Mr. Lewzader said that he was a customer in Charlie's Beach Bar and that on one occasion he had taken home one Fawn Doyle* and on the way home Fawn Doyle had offered to sell herself for $10.00 and as the car stopped, Fawn Doyle grabbed the $10.00 from his hand and jumped out of the car. He stated that he went back to Charlie's Beach Bar and confronted Charlie Sanders later that same day, with the details of his problem with Fawn Doyle. Lewzader said that Charlie Sanders told him that he would have to talk with her. Charlie Sanders then introduced Lewzader to a Mike and a Linda who were in Charlie's Beach Bar. A conversation then ensued, in which it was indicated through Charlie Sanders, that he might help make the matter with Fawn Doyle right by the introduction of Mike and Linda. Linda and Mike stated that Linda would sell herself for $25.00 for the first hour, $50.00 for the second hour and $75.00 for all night and that they would deduct the $10.00 that had been taken by Fawn Doyle. This conversation with Linda and Mike took place on the premises of the Respondent, to wit, Charlie's Beach Bar. On cross-examination, Mr. Lewzader indicated that he had gone to the Indian Rocks Police Station to complain, after the $10.00 had been taken by Fawn Hetland. Then he went to speak to Charlie Sanders and met Mike and Linda, and later returned back to the police station to file a complaint. Respondent's Exhibit #1 was introduced through the witness, Lewzader. This item of evidence was the affidavit of complaint by Jack Lewzader. It was admitted without objection. As Respondent's Exhibit #1 reflects, the discussion Mr. Lewzader had at the police station was with one Officer Marvin Padgett. The witness indicated that Respondent's Exhibit #1 accurately reflects the details of his complaint. Respondent presented testimony in the course of the hearing, and the first witness was Diane Poole. Diane Poole is 23 years old and is a topless dancer at Charlie's Beach Bar at this time and has been so employed for two months. She testified that she applied for a job at Charlie's Beach Bar while down there having a glass of wine. She indicated that while having the wine she was carded by the bartender who was a lady; however, she auditioned before showing any identification card. The process of her hiring included Charlie Sanders asking where she had worked before and dancing to three songs, discussing certain written rules, discussing how old she was and signing a certain paper on income tax. She said that she has never been asked about being a prostitute. The witness has been a dancer for about 3-1/2 years and had started in Phoenix, Arizona. She has also held jobs as a model and as a secretary. *Fawn Doyle and Fawn Hetland was believed to be one and the same person to the knowledge of the witness. Marvin Padget took the stand, after being called by the Respondent. He testified that he knows Charlie Sanders and Carole Sanders. He further testified that he knows Jack Lewzader as being a complainant who came to him about alleged acts of prostitution by Fawn Hetland. In the discussion of his complaint about Fawn Hetland, the witness said he advised Lewzader of his rights and told him that he would not prosecute him for his involvement with the minor, Fawn Hetland. The witness further stated that he asked Lewzader if he was a regular patron of Charlie's Beach Bar and told him to keep his eyes and ears open. If he heard about anything else, such as prostitution, going on in the bar, he instructed Lewzader to report any matters of impropriety to him concerning prostitution in Charlie's Beach Bar. He also asked Lewzader if he had heard of other incidents such as the one with Fawn Hetland. He did not mention the names of any persons he wanted observed in Charlie's Beach Bar. Later, according to the witness, Jack Lewzader completed the complaint which is Respondent's Exhibit #1. Carole Sanders took the stand in her own behalf. She testified that Margie Johnson came into Charlie's Beach Bar and that she auditioned to be a dancer. According to Carole Sanders, Margie Johnson was asked for an identification and she told her she had lost her purse and that she would bring in some identification at a later time. She said she told Margie Johnson about their rules, which were not in the form of writing at that time, and also explained to her about the matters concerning income tax. The witness seemed to indicate that the actual hiring of Margie was at a later time, although she and her husband had agreed to hire Margie Johnson on the same date of the audition. According to the witness, it was her understanding that Margie Johnson would have an identification to show at the time she was actually employed. She doesn't know if any identification was ever shown by Margie Johnson to indicate her age. The witness said, to her knowledge, there is no prostitution in Charlie's Beach Bar and has not been since she became the proprietor, even though there have been 30 or 40 girls hired by the bar in that time period. According to the witness, Fawn Hetland was hired by Charlie Sanders. Margie Johnson, as indicated by the witness, was interviewed and eventually went to work the first day, effective the night that her bar was raided. The witness indicated that she never told anyone she was guilty of hiring minors. Nevertheless, she indicated that she knows she should have made sure on the age of her employees and was remiss in the instance of Fawn Hetland and Margie Johnson. She further stated that she is more careful now about the matter of identification for prospective employees. Charlie Sanders took the stand in behalf of the Respondent. Charlie Sanders, as stated before, is the husband of the Respondent. Describing the hiring of Fawn Hetland, he said he asked for a proof of age and she produced an employment card for Orange County. The witness said he was bothered by that somewhat and asked for further proof of age and Fawn Hetland promised proof later on. He testified that he knew she was married and had a child and for that reason seemed to be satisfied to accept better proof of age at a later time. To the witness's way of thinking, the reason better proof of age was never forth coming was because Fawn Hetland's husband had most of her identification and refused to give it to her. He also stated he had phoned an establishment called the House to see if she had danced there before and was told yes. In discussing Margie Johnson, the witness indicated that he had hired her over a four day period but that she had only worked one day. He said he asked Margie Johnson where she had worked before and she indicated the Savoy Lounge. His wife was there when Margie Johnson was hired. He said he wasn't shown any identification at the time of hiring but Fawn Hetland said that she was alright and he also called the Savoy Lounge, after which he was satisfied at that time. The witness then said that on the second or third night that she had worked she showed him a birth certificate that indicated that she was born in 1953, to which he simply replied, "is this yours?" and then told Margie Johnson to get to work. He said he told his wife that he had seen Margie Johnson's identification. To the witness, Margie Johnson, in August, 1975, looked 22 years of age as the phony birth certificate indicated. In discussing the Lewzader matter, the witness said that Lewzader came into the bar and wanted to talk to him about Fawn Hetland. He said that Lewzader told him that Fawn Hetland wanted some money for baby food and that he was going to give her $10.00 and she "ripped" the $10.00 off him, and that Lewzader simply wanted him to know what kind of person Fawn Hetland was. He confronted Fawn Hetland with the matter and Fawn Hetland said that Lewzader was trying to have sex with her. Before he could resolve the difference between Jack Lewzader and Fawn Hetland, he had to leave the bar and to his knowledge that was the end of the situation. The witness indicated that he had found out about the complaint before the time of his arrest by the Indian Rocks Beach Police Department, for prostitution type charges. He said that Lewzader was in his bar and he confronted Lewzader with the fact of Lewzader's claim in the affidavit, and Lewzader told him they simply had made it up, meaning the police. He said that Lewzader told him that he would never have come back into the bar to face him had he made the charges that the police claim. As an aside, the witness indicated that there had been a Linda working there at one time but that her fiance had not liked it and she had quit the job. He said that Linda continued to come in there, perhaps, but that he did not think Linda was in there at the time Jack Lewzader came to discuss the matter of Fawn Hetland. Attention is drawn to Petitioner's Exhibit #5 which is records turned over to the police by Carole Sanders, Respondent. These records seem to indicate that Margie Johnson was working there for more than one night. Moreover, these records seem to indicate that a person named Linda was working there at the same time that Marge (Margie Johnson) was. From the discussion of the employment of Margie Johnson, both from the standpoint of Margie Johnson, Carole Sanders, and Charlie Sanders, it appears that Margie Johnson was employed on the licensed premises of the Respondent when she was under the age of 18. Furthermore, the description of the technique involved by Carole Sanders and Charlie Sanders in trying to ascertain the age of Margie Johnson does not demonstrate due diligence on the part of the Respondent in hiring Margie Johnson. This conclusion assumes the validity of the story of any one of the three witnesses, to wit, Margie Johnson, Carole Sanders, or Charlie Sanders. It is noted that there is a major inconsistency concerning the date at which Margie Johnson was formally employed by the Respondent, when considering the version of Carole Sanders and Charlie Sanders, and consequently Margie Johnson is more creditable. In examining the application of count 1, to Fawn Hetland, one must look to the statements of Charlie Sanders. Assuming that what Charlie Sanders has said is exactly true, it would appear that Charlie Sanders as the agent or employee of Carole Sanders did not use due diligence in hiring Fawn Hetland. This is further established in view of the fact that a prima facie case has been established that Fawn Hetland was under the age of 18 when she was hired, as set forth by testimony offered by officer McMullen in discussing Carole Sanders admission. Although the nature of the acts of Jack Lewzader in involving himself with a minor for purposes of promoting prostitution on the part of Fawn Hetland and then in returning to Charlie's Beach Bar and engaging in the discussion of further prostitution with a subject whose name is Linda, would make his testimony somewhat suspect, it would still seem strong enough to support the charges in count 2. The testimony of Jack Lewzader must be contrasted with the interest on the part of Charlie Sanders in protecting the license, and must be considered in view of the fact, that there was a Linda working there at some time and who was apparently working there at the same time as Margie Johnson. Furthermore, Margie Johnson testified that she had seen Fawn Hetland discuss the price of $25.00 for purposes of prostitution, and leave with the man she was having that conversation with and not return until the next day. Finally in discussing count 3 of the charges, it is well established that Margie Faye Johnson was consuming an alcoholic beverage, to wit, beer on August 23, 1975, when the investigators arrived on the premises to serve the warrant. It has also been established that due diligence had not been followed in ascertaining the age of Margie Johnson before allowing her to consume that alcoholic beverage on the licensed premises, for reasons set forth in the discussion of count l.
Recommendation For committing the violation alleged in count 1 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. For committing the violation alleged in count 2 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage assess a civil penalty in the amount of $500.00. For committing the violation alleged in count 3 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Robert K. Hayden, Esquire 932 South Myrtle Avenue Clearwater, Florida 33516 =================================================================
The Issue Whether Respondent, a certified law enforcement officer, committed the violations alleged in the Second Amended Administrative Complaint dated February 21, 1991, as further amended by order issued March 11, 1992, and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner is the agency of the State of Florida that is responsible for the certification of law enforcement officers. The Respondent was certified by the Criminal Justice Standards and Training Commission on February 27, 1981, and was issued certificate number 02-27492. VERBAL THREATS TO OFFICER LINDQUIST ON JANUARY 15, 1986 In January 1986, Officer Barry Lindquist was working as a shift Lieutenant with the Pompano Beach Police Department (PBPD). Respondent was one of the police officers assigned to Officer Lindquist's shift. At the time he gave his deposition in this proceeding, Officer Stanley Tipton was the Chief of Police for Pompano Beach. In January 1986, Officer Tipton was a sergeant with the PBPD. On January 15, 1986, Respondent called in sick and did not report to work. Officer Lindquist asked Officer Tipton to go over to Respondent's house to check on his welfare. Officer Tipton called the Respondent's house before leaving the police station for the house and spoke to a man (someone other than Respondent) and then to a woman. He advised that he was coming to check on Respondent. Officer Tipton arrived at Respondent's house at approximately 7:45 p.m. Officer Tipton was greeted at the door by a young man who asked him to come in. He stepped inside the doorway and asked for the Respondent. The young man proceeded to the rear of the house, and the Respondent subsequently appeared in the hallway. Respondent had on a pair of pants, but no shirt, and he started walking toward Officer Tipton. Officer Tipton observed a firearm sticking out of Respondent's waistband and, because he had become apprehensive, stepped backwards. Respondent recognized Officer Tipton and said "It's a good thing it was you Tipton, 'cause if it was Lindquist, I would have shot him." After Respondent got closer to Officer Tipton, he repeated his threat two additional times and continued to express his anger toward Officer Lindquist. Officer Tipton was of the opinion that Respondent was serious about the threats he had made against Officer Lindquist and that he was angry that Officer Lindquist had sent Officer Tipton to check on him. Officer Tipton observed that Respondent's eyes were bloodshot, his speech was slurred, and his balance impaired. Officer Tipton was of the opinion that Respondent had been drinking. Officer Tipton talked to Respondent, saying that the Respondent would not do what he had threatened, and kept his eye on Respondent's gun. Respondent calmed down and allowed Officer Tipton take the gun from him. Officer Tipton then placed the gun on a table in the hallway. After Respondent calmed down, Officer Tipton and Respondent shook hands and Officer Tipton left the house. As Officer Tipton was leaving, Respondent offered to let him take the gun with him, an offer that Officer Tipton declined. Officer Tipton told Respondent that he was not going to take the gun because Respondent was in his own house and because Officer Tipton did not believe Respondent was going to leave the house and do anything. Officer Tipton left the gun with Respondent. After Officer Tipton left Respondent's house, the Respondent called the Pompano Beach Police Department and spoke to Barbara Johnson, who is a police department telecommunicator. Respondent asked to speak to Officer Lindquist. Ms. Johnson could tell from Respondent's voice that he was very upset, and during the course of his conversation with Ms. Johnson, Respondent threatened to shoot Officer Lindquist. Ms. Johnson kept talking to Respondent and was able to calm him down. Ms. Johnson immediately thereafter called Officer Lindquist and told him what had happened and that Respondent wanted Officer Lindquist to call him. Officer Lindquist called Respondent, who was still upset and angry. Respondent told Officer Lindquist by telephone that "it was a good thing that you hadn't come over to my house because if you had, I probably would have shot you." Officer Lindquist continued to talk to Respondent and calmed him down. As a result of this incident, Respondent was investigated by PBPD internal affairs and given a thirty day suspension from work. INVESTIGATION OF THREE CAR ACCIDENT ON MAY 19, 1987 On May 19, 1987, Respondent responded to Atlantic Boulevard in Pompano Beach to investigate a traffic accident involving three cars. This incident occurred when car #2 rear-ended car #1 and car #3 thereafter rear-ended car #2. Katherine Danner was the driver of car #3. Respondent arrived at the scene and assumed that Ms. Danner had first rear-ended car #2 (driven by a Mr. Flowers) which had caused car #2 to rear-end car #1. Respondent's assumed that the accident was entirely Ms. Danner's fault without conducting a proper investigation. Respondent told Ms. Danner that the other drivers would probably blame her for the entire accident. Mr. Flowers thereafter told Respondent that he had rear-ended car #1 before Ms. Danner became involved in the accident. Respondent then told Mr. Flowers that he was going to give him a ticket if he stuck to that story. Ms. Danner felt that Respondent was giving Mr. Flowers the opportunity to avoid a ticket by changing his story, and filed a complaint against Respondent with the Pompano Beach Police Department. Following an investigation, it was determined that Respondent had improperly handled the investigation and had exhibited a poor attitude. Respondent received a letter of reprimand reflecting those findings. There were no findings and no allegations that Respondent had falsified his police report or that he had solicited a false statement. The evidence failed to establish that Respondent solicited a false statement from Mr. Flowers or that he made a false statement in his police report. ASSAULT ON FORT LAUDERDALE POLICE OFFICERS ON AUGUST 21, 1987 At the time pertinent to this proceeding, Joel Maney, Lee Spector, Russell H. Hanstein, Leon O. Walton, Edward N. Good and Captain Robinson, were police officers employed by the City of Fort Lauderdale Police Department. On August 21, 1987, Officer Maney was on regular patrol in the City of Fort Lauderdale on the midnight shift. He was patrolling the area of Northwest 6th Street and Northwest 9th Avenue, Fort Lauderdale. At approximately 2:45 a.m., Officer Maney observed a dark blue, four door car (which he later learned was Respondent's personal vehicle) traveling at a high rate of speed west on Northwest 6th Street. Officer Maney, who was driving a marked patrol car, got behind Respondent's car as quickly as he could and got close enough to read the license plate. Officer Maney observed a Fraternal Order of Police emblem on the license plate, but he could not read the entire tag. Officer Maney suspected that the car might have been stolen, and he tried to run the license number. While Officer Maney was still following Respondent's car, Officer Spector, who was also driving a marked patrol car, pulled up behind Officer Maney and followed both vehicles. While both officers followed the blue car, it ran two stop signs. Officer Maney decided to stop the car and put on his blue lights and siren. Respondent was the operator and sole occupant of his car. Respondent pulled over within two blocks after Officer Maney put on his blue lights. After he stopped, Officer Maney got out of his car and approached the driver's side of Respondent's vehicle. Officer Spector got out of his car and approached the passenger's side of Respondent's vehicle. Respondent was wearing his uniform pants and a white T-shirt. Officer Maney asked Respondent for his driver's license and registration. Respondent responded in an agitated voice, saying "I don't have my fucking license." Officer Maney noticed that the Respondent had a gun stuck in his waistband, and ordered him several times to put both hands on the steering wheel. Respondent was not cooperating with Officer Maney or Officer Spector and in a very agitated voice used profanity against the officers. Officer Maney was of the opinion that Respondent was not acting abusive towards him, but that he was acting in an unprofessional manner. Respondent eventually gave the gun to the officers and stepped out of the vehicle as instructed. Even after Respondent exited his car, he was uncooperative with the officers and refused to let them do a pat-down search. At this point, Officer Maney called for backup officers, and Officers Hanstein, Good, Captain Robinson, and other officers came to the scene. Respondent was still in an agitated state when the backup officers arrived, and was making comments to no one in particular in a loud voice. Respondent stated that he was a Pompano Beach Police Officer and that he had been trained by Joe Hess and Ed White, two well-known martial arts experts who trained officers at the Broward County Police Academy. Respondent said that he weighed 240 pounds and that he was a "mean mother fucker." He said that he would hurt some people before he went to jail. Respondent looked directly at Officer Hanstein, pointed his index finger at him, and said, "I'm going to kick your ass." Respondent then looked at Officer Spector, pointed his finger directly at him, and said, "Then, I'm going to kick your ass." Respondent was between eight and ten feet away from these officers at the time he made these statements, and there were several other officers in the general area. He was unrestrained at the time he made these statement, and he used a serious, angry tone of voice. Respondent had the apparent ability to carry out his threats, and he caused the officers to be concerned for their safety. At this point, Respondent was arrested and charged with two counts of assault on a law enforcement officer. Both charges were misdemeanors. Respondent subsequently entered a plea of no contest to the two charges. At no time during the course of the incident did Respondent attempt to swing at or kick at any of the Fort Lauderdale Police Officers. Respondent did not offer any resistance after he was placed under arrest. At the time of this incident, Officer Hanstein, Officer Spector, and the other Fort Lauderdale officers were in uniform with marked patrol units. Following his arrest, Respondent's employment with the Pompano Beach Police Department was terminated. His employment was subsequently restored. ALCOHOLIC REHABILITATION On the night he threatened Officer Lindquist and on the night of his arrest by the Fort Lauderdale Police Officers, Respondent had been drinking. Respondent is an alcoholic and was drinking to excess, which contributed to his misconduct. Respondent admitted to himself that he was an alcoholic after he was fired following his arrest. He subsequently admitted his problem to his family, to the City Manager of Pompano Beach, and to his police supervisors, and he asked for help. On New Years' Eve, December 31, 1987, Respondent voluntarily checked himself into a five day inpatient program for alcohol detoxification. After successfully completing that program, Respondent joined an outreach program and became active in AA. Respondent successfully completed a course of treatment and therapy with the Broward County Alcohol and Drug Abuse Services on August 8, 1988. With the exception of one relapse, Respondent has not had a drink in two years. Respondent appealed the termination of his employment to the Pompano Beach Civil Service Board, which determined that his misconduct was alcohol related and ordered his reinstatement pursuant to a "One Last Chance Agreement". This arrangement returned Respondent to work on a special one year probationary period. Under the terms of the agreement, Respondent's employment would be terminated without recourse if he violated any PBPD policy or procedure and if the violation was alcohol related. Respondent successfully completed that probationary period and has been reinstated to all rights and privileges of any other PBPD officer. For the last three and one half years, Respondent has worked as a police officer assigned to the city jail. He incurred a three day suspension when he did not report to work following the death of his godson, but his work record has otherwise been acceptable. His supervisor views him as an outstanding employee and his colleagues respect him and consider him to be a dependable, efficient police officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact and the conclusions of law contained herein and which reprimands Respondent for his failure to maintain good moral character as found herein. DONE AND ORDERED this 5th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-1398 The proposed findings of fact submitted on behalf of the Petitioner are adopted in material part by the recommended order with the exception of the proposed finding in the second sentence of paragraph 45, which are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-24, 28, 29, 30, 33, 34, 35, 36, 37, 38, and 39 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 25 are rejected as being unsubstantiated by the evidence. While it is apparent that excessive drinking contributed to Respondent's problems, the proposed findings are an overstatement. The proposed findings of fact in paragraphs 26 and 27 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 31 and 32 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraphs 40-46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 47 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Dawn Pompey Whitehurst, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William E. Platlow, Esquire Panza, Maurer, Maynard, Platlow & Neel, P.A. 3801 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner's application for Firefighter's Supplemental Compensation should be granted?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner graduated from Southern Illinois University in Carbondale, Illinois in May of 1976 with a Bachelor of Science degree. His major was "Radio-Television." Petitioner is currently employed by the City of Delray Beach as a firefighter/paramedic, the job description for which reads as follows: JOB TITLE: FIREFIGHTER/PARAMEDIC GENERAL DESCRIPTION: Skilled technical work in the City's Fire Department in the field of fire suppression, prevention and emergency medical services. Work is performed under the general direction of the Battalion Chief. ESSENTIAL JOB FUNCTIONS: Performs all duties in the Firefighter job description. Responds with necessary equipment to requests for medical assistance, where life is endangered by illness or injury. Administers basic and advanced life support at the scene of an emergency. Transports victims to the closest appropriate medical facility according to protocol, unless turned over to a licensed transport agency with equal or higher medical authority. Maintains basic and advanced life support apparatus and equipment. (These essential job functions are not to be construed as a complete statement of all duties performed. Employees will be required to perform other job related marginal duties as required.) FULL PERFORMANCE KNOWLEDGE, SKILLS, ABILITIES AND PERSONAL CHARACTERISTICS: Knowledge of the positions of firefighter and driver engineer and the skills to perform the duties of each. Knowledge of the geography of the City with respect to streets, hydrants and building access information. Knowledge of the location and layout of all high risk and special hazard occupancies, and the problems encountered with each. Knowledge of the strategy and tactics of handling fire, rescue and medical emergencies and the ability to analyze and respond effectively under stress to each. Knowledge of the record keeping system in use, the components of the system, and the functions of each. Knowledge of paramedic principles, practices and techniques and how they are used in rescue operation. Ability to carry out orders and to see that department and City policies are adhered to. Ability to perform Firefighter and ALS duties effectively. MINIMUM QUALIFICATIONS: High School graduation or possession of an acceptable equivalency diploma. Completion of minimum standards as required by the State of Florida. Successful completion of all medical and fitness requirements and examinations as described by the City. LICENSES, CERTIFICATIONS OR REGISTRATIONS: State of Florida Paramedic Certification. State of Florida Firefighter Certification. Protocol Certification issued by Department Medical Director. Class D Commercial Drivers License. ESSENTIAL PHYSICAL SKILLS: Meet physical requirement as indicated for State certification. Must endure sustained acts of physical exhaustion and endure periods of duty under unfavorable and life threatening situations. Heavy (45 pounds and over) lifting and carrying Reaching Acceptable eyesight (with or without correction) Acceptable hearing (with or without hearing aid) Ability to communicate orally Climbing (including ladders) Pulling Pushing Walking Standing Crawling Kneeling Bending Balancing Smelling Stooping Jumping Throwing Driving Running Swimming ENVIRONMENTAL CONDITIONS: Hazardous conditions: flames, fire, chemicals, smoke, heat, gases, moving vehicles, falling structures and debris, electricity, poor ventilation, poor lighting and related hazards Stressful situations Bio-hazard infectious disease (Reasonable accommodations will be made for otherwise qualified individuals with a disability.) Because of his educational background in "Radio- Television," Petitioner has, on occasion, been requested by his supervisors to produce video tapes used for firefighter/paramedic training or for educating the public concerning the services offered by the City of Delray Beach Fire Department. The production of these video tapes, however, is not one of Petitioner's primary job duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Respondent is not entitled to the supplemental compensation he is seeking pursuant to Section 633.382(2)(a)2., Florida Statutes. DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. WILLIAM J. KENDRICK 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 27th day of March 1991.
Findings Of Fact Respondent held a certificate as a law enforcement officer from June 15, 1979 through October 1, 1983. This certificate is currently inactive. At all times relevant herein, Respondent was employed in a law enforcement capacity with the Pompano Beach Police Department. On October 2, 1981, Respondent, who is black, filed a memo with the Chief of the Pompano Beach Police Department, alleging harassment of black officers and mistreatment of prisoners by police supervisors. Respondent also described an alleged beating by police in an incident which occurred on June 8, 1981. The June 8 incident came to Respondent's attention weeks later in a casual conversation with a Mr. Phillip Robinson who had witnessed the incident and described it to Respondent. Respondent, in turn, reviewed the files and found no "use of force" report which led him to conclude that the incident had been covered-up. At Respondent's urging, Robinson came forward and gave his statement to the Pompano Beach Police Department regarding this incident. An investigation of this incident and Respondent's other allegations was conducted by the department. Their findings and conclusions differed substantially from those of Respondent. Contrary to Respondent's contention, a use of force report had been filed. Also, Robinson did not actually see the police strike the detainee on the head nor did he observe six blows as related by Respondent. It must be recognized that Respondent was urging an investigation and did not intentionally misrepresent facts which he himself sought to have determined through such investigation. However, Respondent's accusations of police brutality, official cover up, and racial harassment were at best premature, where, as with the June 8 incident, he was neither a witness nor the designated investigator. The second incident on which evidence was presented arose when Respondent reported for reassignment as a "teleserve officer" on December 27, 1982. Respondent had been contacted at home and verbally told to report to Captain Sullivan at 11:00 a.m. for the new assignment. Sullivan observed Respondent outside his office shortly after 11:00 a.m. and directed him to come into the office to discuss his new duties. Respondent refused to come in stating that he had to go to the bathroom. Shortly thereafter he did return and enter Sullivans' office. An argument which involved shouting heard by other employees ensued, and Sullivan thereupon suspended Respondent and temporarily relieved him of duties. Respondent was in a guarded state of mind when he reported to Captain Sullivan. He had previously been under psychological evaluation on order of the department and had only three days previously filed several memos accusing police officials of racial harassment and requesting an investigation. Without Sullivan's knowledge, Respondent recorded that portion of the conversation which took place inside Sullivan's office. A transcript of this conversation revealed that Respondent was prepared to accept his new assignment, but believed that it was a desk job created to harass him. Respondent made several accusations of harassment which apparently angered Sullivan, resulting in a loud and angry exchange. Respondent established through the testimony of the former city personnel director and coworkers at the Pompano Beach Police Department that he was targeted for firing by police supervisors who wanted to get rid of him. This testimony also established that Respondent was a capable patrolman who had been commended for outstanding police work by both the department and members of the public.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the charges contained in its Administrative Complaint. DONE and ENTERED this 26th day of November, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 26th day of November, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Charles T. Whitelock, Esquire Department of Law WHITELOCK and MOLDOF Enforcement 1311 Southeast Second Avenue Post Office Box 1489 Ft. Lauderdale, Florida 33316 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 12489 Tallahassee, Florida 32302
Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Glen Thurlow (Thurlow), was certified by the Criminal Justice Standards and Training Commission (Commission) on June 15, 1982, and was issued Certificate Number 02-3128. Thurlow has been employed by the West Palm Beach Police Department (WPBPD) for the last eight years. On the evening of November 24, 1990, Thurlow was assigned as a police officer to the WPBPD Criminal Apprehension Team (CAT), which is a street crimes unit. That evening Thurlow was partnered for the first time with Lee Rollins (Rollins), a fellow police officer on CAT. Thurlow and Rollins were assigned as plain clothes officers in an unmarked police vehicle, an old, gold Cadillac. Thurlow had on a black T-shirt, combat pants, black combat boots, duty leather and underneath his shirt a bullet-proof vest with a trauma plate. Rollins was dressed in a black T-shirt and jeans. He was not wearing duty leather, but was wearing a utility belt fastened with velcro. Both officers wore their police badges on a chain underneath their shirts. Around 10:30 p.m., near the end of their duty shift, they were returning to the police station. Thurlow was driving south on South Dixie Highway headed toward the Belvedere Road intersection. As they approached the intersection, the officers saw a man, later identified as Robert Jewett (Jewett), dressed in cut-off jeans, a T-shirt, and a cap standing near the middle of the south bound lanes on South Dixie Highway past the Belvedere Road intersection, near the Palm Beach Post Building. The officers continued through the Belvedere Road intersection toward Jewett. As they approached Jewett, he stuck out his left hand in a "hitchhiking gesture." Thurlow pulled over to the side of the road near the parking lot of the Palm Beach Post Building. When Thurlow pulled over, Jewett ran up to the car and got in the back seat. Rollins showed Jewett his police badge, told Jewett that he was a police officer, and requested Jewett to step outside the car. Jewett complied. Rollins exited the Cadillac and Thurlow remained inside. Rollins asked Jewett for his driver's license, which Jewett gave him. Rollins radioed the police dispatcher with the information on the driver's license in order to determine whether there were any outstanding warrants on Jewett. Rollins advised Jewett that he was going to charge him with hitchhiking, but that if there were no warrants against Jewett that he would be given a Notice to Appear and released at the scene, rather than being taken down to the police station. Rollins told Jewett to place his hands on top of the car and spread his legs so that Rollins could search him for weapons. Jewett complied. Thurlow, still sitting in the driver's seat, was monitoring the conversation between Rollins and Jewett. Rollins began the weapons search at Jewett's shoulder and continued down to his left pocket. Finding nothing, he started to search the right pocket. At that time Jewett brought his right arm down from the top of the car. Rollins caught his arm, put it back on top of the car, and told him to keep his hands on the top of the car. As Rollins proceeded to search Jewett's right pocket, Jewett brought his right arm down and stuck it in his pocket. At the same time he came around with his left elbow and hit Rollins on the left side of his chest, knocking him around. Rollins pulled Jewett's hand out of his pocket and they began to struggle. Rollins pulled his flashlight from his back pocket and tried to hit Jewett on his left forearm. Jewett tried to kick Rollins in the groin and Rollins grabbed Jewett's T-shirt. Their feet tangled, the men went down and Rollins fell back toward the car, hitting his head on the back door. Rollins was stunned from the blow to his head. Thurlow felt the Cadillac rock as if someone had bumped against the car. Rollins called to Thurlow to give him some assistance. Thurlow exited the car and came around to the passenger side, where he saw Rollins sitting on the ground with his back to the car, and Jewett straddling and leaning over Rollins with his arms raised as if he were preparing to hit Rollins. Thurlow ran up behind Jewett and put his arm below Jewett's Adam's apple in Jewett's upper chest area in order to pull Jewett back from Rollins. Jewett began to fight and had Thurlow on the balls of his feet. They went towards the front of the car. Jewett went down on his knees with Thurlow's arm still around him. Jewett stood up with Thurlow on his back and they both went backwards, and as a result Thurlow's arm slipped up towards Jewett's chin. Rollins, seeing Jewett put his right hand in his pocket, ran over to Jewett and tried to grab his right hand. The three men fell to the ground and rolled backwards landing in a grassy area. Thurlow still had his arm around Jewett's neck. Thurlow was on the bottom, Jewett in the middle and Rollins on top. Thurlow released his hold on Jewett and slipped out from under Jewett. Thurlow was on Jewett's left side and Rollins was sitting to Jewett's right, about, waist-high facing away from Jewett. Jewett was grabbing at his right pocket. Rollins saw a metal object in the area of Jewett's right pocket. Rollins took his flashlight and swiped at the metal object, sending both the flashlight and the metal object flying off in an easterly direction. Rollins told Jewett to quit struggling. Jewett grabbed the butt of Rollins' gun. Rollins hollered to Thurlow that Jewett had his gun. Rollins hit Jewett in the groin three to four times. Thurlow got up and threw a punch at Jewett connecting at Jewett's left eye. At that point Jewett quit fighting. Thurlow held Jewett's arm over the curb and told Rollins to handcuff Jewett. Having lost his handcuffs in the struggle, Rollins used Thurlow's handcuffs and cuffed Jewett's hands behind his back. All three men were breathing hard and sweating. Rollins told Thurlow that he had lost his flashlight and that something had been thrown out of Jewett's hand during the struggle. Thurlow left Rollins with Jewett and went to look for the lost items. At the time Thurlow left Rollins and Jewett, Jewett was breathing. During the struggle, Rollins' handcuffs, radio, and ammo pouch came off his belt. Rollins found his radio and called the dispatcher at 22:35:52 hours to report the incident. He then went to look for the rest of his missing equipment and was gone approximately one to one and a half minutes. Rollins returned to Jewett and started to pick him up; however Jewett was limp. Rollins put him back on the ground and tried to take his pulse. Because Rollins was still in an excited state from the fight, he could not tell whether he was getting a pulse from Jewett. He tried to take Jewett's pulse again but still could not determine whether he was getting a pulse. Thurlow, having found the flashlight in the grass and an open pocketknife on the sidewalk, walked back over to Rollins and Jewett. Thurlow asked Rollins if something was wrong with Jewett, and Rollins replied that Jewett did not look well. At 22:39:54 hours Thurlow radioed for the paramedics. At 22:43:35 hours, Thurlow again radioed for the paramedics to hurry and get to the scene. Rollins again checked for a pulse but could not determine whether there was a pulse. A few minutes later firefighters, responding to a medical call, arrived on the scene. One of the firefighters checked Jewett's pulse and breathing and determined that Jewett was not breathing and did not have a pulse. Jewett was pale with some discoloration and swelling about the face. Within several seconds, the rescue team arrived. The rescue team got Jewett uncuffed and began to administer advanced life support. Jewett was transported to a hospital where he was pronounced dead. Both Thurlow and Rollins were trained to administer CPR; however the unmarked police vehicle did not contain rubber gloves or a bag which are used in administering CPR to protect the person administering CPR from diseases such as AIDS which could be transmitted by bodily fluids. Additionally, Jewett appeared to be breathing, which would mean that he was not a candidate for CPR. At the time of the incident, Joseph Huffman and his girlfriend were traveling north on South Dixie Highway in a van. The van had windows on the rear doors and on the passenger and driver doors. As Mr. Huffman approached the Palm Beach Post parking lot, he saw two men scuffling on the hood of the gold Cadillac. He began to slow down to watch the fracas. He observed the fight for approximately 20 to 30 seconds, during which time he looked over to the El Cid Bar to see if anyone was watching. His girlfriend observed that Huffman tried to look at the fight through his side mirror but couldn't see so he stuck his head out the driver's window and glanced back once or twice, looking forward to check the approaching traffic. Huffman recalled seeing a third man strike Jewett at least 20 times in the groin with a flashlight; however the medical evidence does not support Mr. Huffman's assertion. Having judged the credibility of the witness, I find that Mr. Huffman's recollection is not credible. An autopsy was performed on Jewett by the Palm Beach County Medical Examiner, Dr. James Benz. The autopsy revealed that Jewett had a black eye, markings on the forehead and neck area, minor bruises and abrasions on the right forearm, abrasions on the knees, and abrasions on the right wrist. Jewett suffered fractured ribs and bruising of the left lung underlying the rib fractures. There was a "blow out" of the heart. There was hemorrhaging underneath the Adam's apple and an irregular fracture in the lamana below the Adam's apple. The hyoid bone, which sits above the voice box, was fractured. There were no injuries to the upper thighs, penis or lower abdomen. There was a mild bruise in the testicle area and hemorrhaging in the left testicle. The injuries to the testicles are not consistent with Jewett's being hit between 10 to 20 times with a flashlight in the groin. The "blow out" of Jewett's heart is called a cardiac tamponade. Most probably as a result of the impact to Jewett's chest when he, Rollins, and Thurlow fell to the ground, a thin area of Jewett's heart blew out forming a small hole in Jewett's heart. The heart pumped blood through the small hole into the pericardial sac. As a result of the blood flowing into the pericardial sac, the heart could not expand and death occurred. The cardiac tamponade did not occur after Jewett died nor did it occur in a peri-mortem, near-death state. The cardiac tamponade did occur while Jewett was alive and death occurred some time later. Based on the testimony of Dr. Charles Petty, an expert in forensic pathology, I find that the injuries to Jewett's neck occurred as a result of forceful application of force to the neck, which is consistent with a fall across a rounded object such as a forearm rather than police carotid holds and choke downs. The Use of Force Matrix from the Florida Department of Law Enforcement is the state standard concerning the use of force by law enforcement officers. The matrix lists the resistance levels of a subject and indicates the appropriate level of force to be used by an officer in responding to the various levels of resistance. An aggressive physical resistance is defined as overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. Aggravated physical resistance is when the subject makes overt, hostile, attacking movements with or without a weapon, with the intent and apparent ability to cause death or great bodily harm to the officer or others. The resistance level of Jewett when he was straddled and leaning over Rollins as Rollins was up against the fender of the Cadillac and Jewett's actions at the front of the car with Thurlow constitutes aggressive physical resistance. The matrix guidelines indicate that an officer may use all levels of force with the exception of deadly force in dealing with aggressive physical resistance. When Thurlow grabbed Jewett from behind to remove Jewett from his position of standing over Rollins, Thurlow was not using deadly force. His arm was not under Jewett's chin but was lower, nearer the upper chest area. The resistance level of Jewett when he was trying to get Rollins' gun constitutes aggravated physical resistance. The matrix guidelines for force to counter aggravated physical resistance include among other things, counter moves, incapacitation, and deadly force. Deadly force includes techniques that may result in imminent or serious injury, unconsciousness or permanent disfigurement, such as impact weapon strikes to the head or use of firearms. Thus, Thurlow's punch to Jewett's face was within the matrix guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against Respondent, Glen H. Thurlow. DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2593 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance with the exception of the word "allegedly" which is rejected. The second sentence is accepted in substance. Paragraphs 10-12: Accepted in substance. Paragraph 13: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 14: Accepted in substance. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance; however it should be noted that it appeared to Thurlow that Jewett was about to strike Rollins. Paragraph 17: The first and second sentences are rejected as not supported by the greater weight of the evidence. The evidence established that Thurlow jumped across Jewett's back, placing his arm across Jewett below Jewett's Adam's apple. The second sentence is accepted in substance. Paragraph 18: Accepted that Thurlow and Jewett continued to struggle. Rejected that Thurlow continued to maintain a choke hold on Jewett. The greater weight of the evidence established that Thurlow's arm did not slip up under Jewett's chin until Jewett and Thurlow began to fall backward. Paragraph 19: Rejected as not supported by the greater weight of the evidence. Paragraph 20: Accepted in substance with the exception of "continued to hold Mr. Jewett in a choke hold." The evidence established that Thurlow's did not have a choke hold on Jewett until they fell backwards and that the choke hold was not an intentional action but rather resulted from the struggle between Jewett and Thurlow and Rollins running into them. Paragraph 21-22: Accepted in substance. Paragraphs 23: Accepted in substance except to the extent that such finding implies that Thurlow had a choke hold on Jewett at the time that Huffman saw them. Paragraphs 24-26: Having judged the credibility of the witnesses, I find that Huffman's testimony concerning the repeated striking of Jewett in his groin not to be credible, particularly considering the medical evidence and the fact that Huffman was driving down the street while he was trying to look at the fight and keep track of traffic both in front of and behind him. Paragraph 27: Rejected as not supported by the greater weight of the evidence. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as not supported by the greater weight of the evidence. Paragraph 30: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett the entire time that they were struggling. The evidence established that Thurlow did not start out with a choke hold but that during the struggle, Thurlow's arm slipped underneath Jewett's chin. Paragraphs 31-35: Accepted in substance. Paragraph 36: Accepted in substance to the extent that at one point in time while Jewett was supine on the ground his head was turned toward Thurlow and he grabbed Thurlow's shirt but rejected to the extent that it implies that during the entire time Jewett was on the ground he was looking at Thurlow and grabbing Thurlow's shirt. Paragraph 37: Accepted in substance. Paragraph 38: Accepted in substance to the extent that Thurlow did hear Rollins shout that Jewett had grabbed his gun and to the extent that Thurlow did not see Jewett actually grab the gun. Rejected to the extent that the word "claiming" implies that Rollins may not have shouted to Thurlow that Jewett had his gun and rejected to the extent that the last part of the sentence could be construed to mean that Thurlow did not see Jewett's right arm reach in the direction of Rollins' holster. Paragraphs 39-40: Accepted in substance. Paragraph 41: Accepted in substance with the exception of the word "allegedly." Paragraphs 42-45: Accepted in substance. Paragraph 46: The portion relating to rendering medical assistance is accepted in substance. The portion relating to never checking on the well being of Jewett is rejected as not supported by the evidence. Thurlow did inquire of Rollins concerning the condition of Thurlow before he called for the paramedics. Paragraph 47: Accepted in substance. Paragraph 48: Accepted in substance to the extent that Rollins did not render any first aid but rejected to the extent that Thurlow always had an unobscured view of Jewett. The evidence established that Thurlow was looking for the knife and the flashlight during a portion of the time . Paragraph 49: Rejected as constituting a conclusion of law. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-53: Accepted in substance. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: Rejected as not supported by the greater weight of the evidence. Paragraph 56: Accepted in substance. Paragraphs 57-59: Rejected as subordinate to the facts actually found. Paragraphs 60-73: Rejected as unnecessary. Paragraph 74: Accepted in substance to the extent that Jewett was lying on the ground, was bloody, and was not moving. In light of the testimony of Mr. Cook that Jewett's skin was pale and there was discoloration about his face, I do not find Mr. Bouchillion's testimony that Jewett was turning blue to be credible. Paragraph 75: Accepted in substance. Paragraphs 76-77: Rejected as subordinate to the facts actually found. Paragraphs 78-86: Accepted in substance. Paragraphs 87: Rejected as not supported by the greater weight of the evidence. Paragraph 88: Accepted in substance. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-96: Accepted in substance. Paragraph 97: Having considered the opinions of Dr. Benz and Dr. Petty, I reject the finding to the extent that it implies that the fractures resulted from a choke hold applied prior to Thurlow, Jewett, and Rollin falling down and rolling into the grassy area. Paragraph 98: The first sentence is accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. Paragraph 99: Accepted in substance. Paragraph 100: Rejected as not supported by the greater weight of the evidence. Paragraphs 101: Rejected as subordinate to the facts actually found. Paragraph 102: Rejected as subordinate to the facts actually found. Paragraph 103: Rejected as unnecessary. Paragraph 104: Accepted in substance. Paragraphs 105-109: Rejected as subordinate to the facts actually found. Paragraph 110-111: Accepted in substance. Paragraph 112: Rejected as subordinate to the facts actually found. Paragraph 113: Accepted in substance. Paragraph 114: Rejected as subordinate to the facts actually found. Paragraph 115: Rejected as unnecessary. Paragraphs 116-117: Rejected as subordinate to the facts actually found. Paragraph 118: Rejected as not supported by competent substantial evidence. Paragraph 119: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett from the time there were at the rear of the Cadillac until they fell backwards. The evidence established that Thurlow did not have Jewett in a choke hold when Thurlow grabbed Jewett from behind. Paragraph 120: Rejected as constituting argument. Paragraph 121-125: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 2-3: Rejected as subordinate to the facts actually found. Paragraph 4: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance. The portion of the second sentence relating to Thurlow being able to hear is accepted but the portion that Thurlow could see everything is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance to the extent that Thurlow thought that he needed to monitor the traffic but the greater weight of the evidence established that the Cadillac was not in the lane of traffic while it was parked. Paragraphs 10-27: Accepted in substance. Paragraph 28-30: Rejected as unnecessary. Paragraph 31: Accepted in substance. Paragraph 32: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Gene "Hal" Johnson, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400 250 Australian Avenue, South West Palm Beach, Florida 33401-5012 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Larry A. Moore, was certified as a law enforcement officer and corrections officer in Florida. The Petitioner, Criminal Justice Standards and Training Commission, (Commission), is the state agency responsible for the certification of law enforcement and corrections officer in Florida. During the months of November and December, 1987, Respondent was employed as a police officer by the City of Riviera Beach, Florida. In December, 1987, Officer Chris Hamori was a traffic officer with the same department. He had been issued certain equipment for his personal use on duty in which he had placed his personal identification mark. The equipment, primarily a windbreaker, a raincoat, a flashlight and other items necessary for traffic accident investigation, was kept in the trunk of the patrol car signed out to him. He was the only operator of that vehicle, though numerous department cars, all of the same make and model, were identically keyed. Therefor, any key for any of the vehicles would open and operate any of the other identical vehicles. On December 8, 1987, Officer Hamori was assigned to teach a class at a junior college in the next county to the south. When he got there, it was raining and he went to the trunk to get his raincoat but found it missing. He had to get to class and so did not search the trunk at that time. During the mid-class break, however, he again went to the car to make a more thorough search and discovered that his trunk had been rifled and not only his raincoat but his windbreaker as well were missing. There was no evidence of breaking into the trunk. Officer Hamori reported the theft the next morning and went to the Department's property custodian to let them know as well. At that time he was issued another raincoat and windbreaker which, according to the property custodian, Ms. Bell, had just been turned in by the Respondent who was leaving employment with the Department. Officer Hamori noted, from the lack of patches on the windbreaker, that it was much like his and upon further checking, noted that his name appeared on the underside of the right sleeve where he had placed it when the garment was initially issued to him. He also noted that the raincoat had his name written on the inside of the placket where he had placed it when the coat was initially issued to him. From this, he determined that these two garments were the ones taken from his car, without his knowledge or permission, the previous day. Ms. Bell was quite certain that the items in issue here had been turned in to her that same day by the Respondent. When he brought them in, she cleared his property account and placed the items off to the side. She had not had time to place them back into stock. Notwithstanding Respondent's urging that other individuals than Ms. Bell had access to the property storage area, she indicated that no one else turned in any items of that nature that day. Respondent was the only one to turn in equipment that day and, as was stated, she had not put it back into stock when Hamori came in to ask for a reissue. It is found, therefore, that the property turned in by Respondent was the property issued to Officer Hamori and was the same property which had been taken from him without permission. Respondent urges that numerous people could have gotten into Respondent's patrol car and taken his property because of the large number of keys out that would fit it. This is true, but the evidence is uncontrovertible that the property turned in by the Respondent was the property taken from Officer Hamori's car the day before and there is some evidence in fact, that Respondent indicated to Sergeant Lobeck, his immediate supervisor, that he needed some equipment, including a raincoat, to turn in when he left the Department's employ. It is found, therefore, that Respondent is the individual who took the property in question from Officer Hamori's car. Had this not been discovered, the Department would have been out the cost of the equipment since, because it had been stolen from Hamori, Hamori would have been released from liability for it. Only the property initially issued to Respondent was not returned, and though he ultimately paid for it, at the time in issue, he took it from Hamori without authority. Toward the end of 1988, Assistant Chief of the West Palm Beach Department, attempted to locate the Respondent, then a patrolman with that agency, due to a schedule change. At that time, Respondent was not where he was supposed to be and had not advised the Department of his whereabouts. He was finally located at the Mt. Vernon Motor Lodge in West Palm Beach. Discussions with the manager of that facility indicated that the Respondent had moved out without paying the full amount of the room rent owed and had left his room in a messy and unclean condition. Abel Menendez was the manager of the Mount Vernon Motor Lodge during the period September through November, 1988. During that time, Respondent, who represented himself incorrectly as an employee of the Sheriff's office, rented a room at the motel, paying a rate therefor of $135.00 per week. Respondent was to pay his rent in advance and at first did so, but after a while, he began to get behind in his payments and Mr. Menendez had trouble finding him. When it became clear that Respondent could not bring his arrears current, Mr. Menendez agreed that he could make partial payments to catch up, but he never did so. Finally, in November, along with Mr. Fishbein, the motel owner, Mr. Menendez told Respondent he would have to pay up or move out. When Respondent first began to fall behind in his rent, Mr. Menendez contacted representatives of the West Palm Beach Police Department and gave them a summary of the charges owed by Respondent. The last payment made by Respondent was $135.00 on November 11, 1988, which left a balance due of $500.00 which was never paid. Respondent is alleged to have left the motel during the night of November 11, 1988. According to Mr. Menendez, Respondent "destroyed" the room before his departure. Some of his clothes and things were left in the room. The room was examined the following day by Sgt. Chappell, also of the Department, who had gone there to look for the Respondent at the direction of Captain Griffin. This officer observed holes punched in the walls, and trash and dirty diapers in the room. He never located Respondent. Chief Bradshaw subsequently spoke with the Respondent about this situation and based on the facts as he determined them, terminated Respondent's probationary status with the Department and discharged him. In their discussion, Respondent indicated he had an arrangement with the motel manager, but this was only partially true. The arrangement was to pay in installments but Respondent abandoned the room without doing so. He was locked out by the management the following day. Even though Respondent agreed with Chief Bradshaw to make payments of the amounts owed, he may not have done so. As a result, criminal charges were filed against him. The criminal charges were subsequently disposed of by a Deferred Prosecution Agreement entered into by the Respondent and the State in June, 1989. By the terms of that agreement, Respondent agreed to pay off the obligation at a rate no less than $100.00 per month. However, Mr. Moore never paid any money to the motel because, due to a total mixup in the motel's paperwork, they were never able to establish to whom the money was to be paid. As a result, the matter was ultimately disposed of by the State entering a nolle prosequi in the case. Respondent's public defender, Ms. Kretchmer, remembers Respondent's repeatedly indicating he wanted to pay off the obligation, however. Respondent's wife, with whom he was living in the motel prior to their marriage, recalls having offered Mr. Menendez $300.00 the day before the Moores moved out. Mr. Menendez would not take it, however, indicating he wanted to receive it from Respondent. When Respondent came by, she gave him the money and they went to Menendez to pay him but he would accept only $150.00 and told Moore to keep the rest and not worry about it because, due to the fact he was a policeman, they "needed him around there." Shortly thereafter, however, Mrs. Moore heard Mr. Menendez complaining to the police about the amount owed. She claims Moore tried to make payments several times and whenever he would do so, Menendez would get upset. It was her understanding that Menendez was getting pressure from his boss to collect what was due and get the records straight. He mentioned to her that the motel cash account was short and he was being accused of taking the money. There is some evidence that Moore was not the only one having trouble with rent payments at the motel at that time. When he found that out, he decided to move but Mr. Menendez begged him not to go because his presence as a policeman helped in curbing drugs, gambling and prostitution there. Mrs. Moore absolutely denies that she and Respondent ever hid from Mr. Menendez nor did they sneak out during the night. They checked out in broad daylight at 11:45 in the morning with Mr. Menendez standing by. At that time, Menendez threatened to call the police but, according to Respondent, he, Moore did so instead, but could get no one in authority to listen or help him. Even after they left, Moore called and spoke with Menendez several times but was still subsequently arrested on the defraud charge. According to Mrs. Moore, they at no time damaged the room. At the time they left, the motel was fixing the air conditioner which caused some damage, but that's the only damage in the room when they left. Before they left, she cleaned the room so that it was in the same condition when they left as it was when they moved in. Respondent claims that when he began work with the West Palm Beach Police Department he discussed his rent problems with police officials and told them he had an arrangement with the motel to pay off the arrears. He admits he then got behind and when he tried to pay, the figures kept changing because of the absence of rental records. When he left, his disagreement with the motel was over the amount owed. He called the police to get a witness to his request for a firm bill, but by that time, he had already been terminated and the police would not come out. He had already had his discussion with Chief Bradshaw who, he claims, had told him to take care of the bill whatever the amount. He felt this was unfair, however, because he was told to pay whatever was asked regardless of whether he owed it or not. Respondent was ordained and licensed as a minister by the Church of God, 629 5th Street, West Palm Beach, on January 3, 1992. His minister the Reverend Preston Williams has found him to be a nice person and a well mannered person dedicated to his work, who has served with him in the local ministry since 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that a Final Order be entered in this case, dismissing the allegation of defrauding an innkeeper as alleged in the original Administrative Complaint, finding Respondent guilty of unlawfully taking the property issued to officer Hamori as alleged in the Amended Administrative Complaint, and revoking his certification as a correctional officer and as a law enforcement officer. RECOMMENDED in Tallahassee, Florida this 24th day of April, 1992. ARNOLD H. POLLOCK 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 24th day of April, 1992. COPIES FURNISHED: Gina Cassidy, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Moore 5100 45th Street, Apt. 1-A West Palm Beach, Florida 33401 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
