The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his law enforcement certificate?
Findings Of Fact The Commission has the power to certify and revoke the certification of law enforcement officers. § 943.12(3), Fla. Stat. (2006). Respondent is a certified law enforcement officer. At times relevant to the inquiry he served in that capacity in New Smyrna Beach, Florida. Based upon the record, it is inferred that his employment was in association with what has been identified as the Volusia County Beach Patrol (Beach Patrol). That organization was constituted of law enforcement officers and other employees, to include an ocean rescue life guard and EMT. The latter employment position was referred to in the organization as a Beach Safety Specialist. The accusations against Respondent in this case involve conduct seen by and directed to two females, Captain Tamara Marris, a law enforcement officer and Beach Patrol Specialist Christine Dobmeier. Both worked for the Beach Patrol at times relevant to the inquiry. The incidents that form the basis for this complaint took place in a building (the station) utilized by the Beach Patrol. The basic design of the building is set out in Petitioner's Exhibit numbered one, admitted. The drawing or diagram is not to scale. It does reflect the location of a locker room, the door to that locker room, a bathroom and an office in the building. It also shows the location of Respondent's locker within the locker room. The door into the locker room is kept shut. It has a combination lock on it that must be unlocked to gain access to the locker room. In the summer 2004, Respondent and Captain Marris finished their duty shift at the beach and returned to the station. They were the only employees in the station at the time. Respondent was in the locker room, which was not intended to be a dressing room. The bathroom is the place where people change their clothes from the duty clothing into other attire. Respondent was facing his locker wearing only a towel when Captain Marris entered the locker room. While in the locker room Respondent's genitals were exposed to her view. On this first occasion Captain Marris thought that the exposure was just an accident. On a second occasion when the two officers, Captain Marris and Respondent were closing the shift, Captain Marris walked into the locker room and Respondent dropped the towel he was wearing exposing himself, that is exposing his genitals. The second incident took place in approximately August 2004. There was a third incident at the station between Respondent and Captain Marris. This time before Captain Marris entered the locker room, she said some words to the effect, "Hey, are you decent," to which Respondent replied, "Yeah, come on in." When she entered the room, Respondent dropped his towel to pull up his shorts and she saw his genitals again. In her mind, with the third incident having transpired, she concluded that Respondent's actions were deliberate. As a consequence beyond that point, when Captain Marris needed to put her work gear away in the locker room, she would wait until Respondent left the station. On the third occasion which occurred sometime around September 2004, Respondent and Captain Marris were alone as they had been on the prior two occasions. When Captain Marris determined in her mind that the Respondent was acting intentionally in exposing his genitals, she considered this to be vulgar or indecent. She did not believe that anything in the conduct was legitimate. Certainly by the third occasion, if not before, Respondent's conduct could be seen as intentional and without legitimate purpose. Christine Dobmeier was subject to Respondent's inappropriate conduct. She was a full-time ocean life guard and EMT in the position Beach Safety Specialist. She had similar experiences with Respondent to those between Respondent and Captain Marris. As Ms. Dobmeier recalls, ordinarily the male personnel would wear "life guard baggies" at work. At times the male employees would wrap a towel around the life guard baggies. This reference is understood to mean some form of pants or shorts worn by the male personnel which they would cover with a towel. In July or August 2004 around closing time, Ms. Dobmeier entered the locker room where Respondent was located. He was wearing a towel when she entered the room. At that moment his towel fell exposing his genitals. She stated, "I am so sorry" and walked out. On that occasion the door to the locker room had been open when she entered. A couple of weeks later Ms. Dobmeier entered the locker room. This time the locker room door had been closed. She did not bother to knock because most people in her experience would change their clothes in the bathroom. She pushed the lock mechanism which made a loud noise. She entered the room and saw Respondent, who was wearing only a T-shirt. Respondent was facing his locker. When Ms. Dobmeier entered the room he turned toward her, exposing his genitals. Ms. Dobmeier apologized for seeing Respondent in his undressed state and immediately left the room. There was a third incident involving Respondent and Ms. Dobmeier, a few weeks after the second incident. This time Ms. Dobmeier knocked on the locker room door and Respondent told her to enter the room. When she did he was standing naked and she walked right back out. Later, Ms. Dobmeier asked Respondent about the third incident and said, "Why did you tell me to come in," and Respondent in reply, as Ms. Dobmeier explains, "Just kind of laughed." After the third incident Ms. Dobmeier felt that the Respondent intended the conduct in exposing himself. There was a fourth incident in the locker room. This time Ms. Dobmeier knocked on the locker room door and did not hear anything in response. She activated the locking mechanism and Respondent was found in the room with his penis erect facing her. He asked Ms. Dobmeier whether he, as Ms. Dobmeier states, indicating Respondent, "Was as large as my boyfriend." This is understood to mean a comparison between Respondent and Ms. Dobmeier's boyfriend as to their genitals. No other persons were in the station when this encounter took place. Ms. Dobmeier considered the Respondent's exposure of his genitals as vulgar. As a result of the last encounter Ms. Dobmeier decided not to enter the locker room while Respondent was at the station. At the beginning of 2005 there was another incident. This time Respondent grabbed Ms. Dobmeier's breast after a swim drill. The incident took place in the locker room with the door open and 10 to 12 lifeguards in the main area outside of the room. Only Respondent and Ms. Dobmeier were in the locker room when he performed this act. His action was not invited or acquiesced to. Ms. Dobmeier responded by telling Respondent, "Don't ever touch me again" and walked away.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rule referred to and revoking Respondent's law enforcement certificate. DONE AND ENTERED this 17th day of October, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2006.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact On May 16, 1983, Walter Taylor (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner), having been issued Correctional Certificate Number 66856. On December 23, 19851, Respondent was certified by Petitioner, having been issued Law Enforcement Certificate Number 66855. At all times material hereto, Respondent was employed by the Riviera Beach Police Department (Riviera Beach PD) as a law enforcement officer. In April 1994, Respondent and his wife were divorced. They had been married 14 years and had minor children. Prior to the divorce, Respondent had several confrontations with his wife regarding her relationship with another man, a Mr. Chilton, whom she had met in or around 1988. During one confrontation in April 1993, Respondent slapped his then wife. At times, Mr. Chilton was present when the confrontations took place. At no time prior to the divorce did Respondent harm or threaten to harm Mr. Chilton. Subsequent to the divorce, Respondent’s ex-wife and Mr. Chilton continued their relationship. In August 1994, Respondent wanted to attend his family’s reunion in New York but had insufficient funds to take his children with him. Respondent’s ex-wife agreed to attend the reunion with them. With her financial support, everyone could attend the reunion. Respondent and his ex-wife agreed to a pre- arranged time for them to meet on August 11, 1994, and drive to the reunion together. On August 11, 1994, prior to the pre-arranged time, Respondent and his children were packed and ready to leave. Respondent attempted to contact his ex-wife, so they could depart early. He called several places but to no avail. Having failed to locate his ex-wife, Respondent concluded that she was at Mr. Chilton’s apartment. Respondent called Mr. Chilton’s apartment several times only to get an answering machine. He drove to Mr. Chilton’s apartment. By this time, it was approximately 10:00 or 10:30 p.m. When Respondent arrived at Mr. Chilton’s apartment complex, he observed both Mr. Chilton’s and his ex-wife’s vehicles in the parking area. Respondent knocked on Mr. Chilton’s apartment door but received no response. Having knocked from two to five minutes, Respondent left but stopped nearby at a telephone. He repeatedly called Mr. Chilton’s apartment and again the answering machine answered. Respondent was convinced that his ex-wife was in Mr. Chilton’s apartment and that they were refusing to answer the telephone or the door. Respondent was upset and frustrated. Respondent returned to Mr. Chilton’s apartment and began knocking again. The more he knocked, the more frustrated he became. His knocks became harder and louder until he was pounding the door. No one answered the door. Respondent’s ex-wife and Mr. Chilton were afraid to open the door. At all times, Mr. Chilton and the Respondent’s ex-wife were inside the apartment. The door was locked and the deadbolt was engaged. Becoming more and more frustrated, Respondent hit the apartment door two or three times with both hands, arms raised, palms forward and with the weight of his body behind him. The force applied by Respondent knocked down the door. Respondent entered Mr. Chilton’s apartment beyond the door frame. He told his ex-wife to come outside with him and talk. She immediately complied. While exiting Mr. Chilton’s apartment, Respondent informed Mr. Chilton to bill him for the door. The door to Mr. Chilton’s apartment was damaged beyond repair and the area surrounding the door was severely damaged. The dead bolt area on the door was bulged. The area on the door jam in which the dead bolt slid had popped and come loose and was indented. The door handle was very loose. The trim on the doorway was split. On many occasions Respondent has been involved in law enforcement raids in which he, personally, has had to break down doors with his body. The method used by Respondent to break down the doors during the raids was not the same method used by him on August 11, 1994. Even though Respondent’s action forced open the door to Mr. Chilton’s apartment, he reacted out of frustration, not with the intent to force the door open. However, Respondent acted in reckless disregard for the consequences of his actions. He should not have returned to Mr. Chilton’s apartment but waited for his ex-wife until the prearranged time. Respondent’s actions could have escalated the situation into a more serious incident. He exhibited a reckless disregard for the safety and property of others. The incident was reported to the Martin County Sheriff’s Department. The Deputies on the scene took pictures and completed a report. Mr. Chilton did not want to file criminal charges against Respondent but only wanted his door repaired. The Deputies assisted Mr. Chilton in somewhat securing the door, so that it would at least close. Approximately 3:00 a.m. on August 12, 1994, Respondent telephoned Mr. Chilton. Respondent apologized for the damage to the door and agreed to pay for the damage. Subsequently, Respondent telephoned the apartment complex’s manager and agreed to pay for the damage to the door. The cost of the door was $352.99. A payment plan was arranged in which Respondent would pay for the damage in installments. Due to financial constraints, Respondent was unable to comply with the payment plan as agreed upon. The final payment was made on or about February 2, 1995. Respondent had no reason associated with his law enforcement duties to enter Mr. Chilton’s apartment. Respondent was off-duty and out-of uniform. Respondent entered Mr. Chilton’s apartment without permission or invitation. Respondent is responsible for the damage to the door of Mr. Chilton’s apartment. Prior to the incident on August 11, 1994, in or around June 1994, Respondent received training in Anger Management. On August 3, 1994, Respondent was promoted to Sergeant, on a probationary status, by the Riviera Beach PD. As a result of the incident on August 11, 1994, the Riviera Beach PD conducted a personnel investigation. On January 24, 1995, it issued a notice of intent to take disciplinary action against Respondent -– a demotion from a Sergeant to a Patrol Officer, which included a five percent cut in salary. The disciplinary action was taken by the Riviera Beach PD. On November 2, 1994, Petitioner’s Probable Cause Panel issued Respondent a Letter of Guidance for the act of committing battery (slapping) upon his then wife in April 1993. At the time of the issuance of the Letter of Guidance, Respondent had successfully completed the Probable Cause Intervention Program. The Probable Cause Panel was not aware of the pending disciplinary action against Respondent by the Riviera Beach PD involving the incident of August 11, 1994. Neither Respondent nor the Riviera Beach PD notified the Probable Cause Panel of the pending disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Suspending Respondent’s certification for thirty (30) days. DONE AND ENTERED this 17th day of March, 1997, in Tallahassee, Florida. ERROL H. POWELL 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 17th day of March, 1997.
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 =================================================================
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
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
