The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all pertinent times, Aubrey Moran, who holds a Florida pharmacist's license, No. 0010982, was the managing pharmacist and the dispensing pharmacist at Lake Mary Pharmacy, 185 North Country Club Road, Lake Mary, Florida, a community pharmacy that holds permit No. 0007301. Half a block away from Lake Mary Pharmacy Robert L. Bevier, M.D., who was then Lake Mary's "principal general practitioner," had his office. COCAINE In the fall of 1981, Dr. Bevier brought respondent an article from a medical journal, which read, as follows: Make Your Own TAC; It Works Well Atlanta--An Atlanta emergency physician has reported good results with a topical anesthetic called TAC made of tetracaine, cocaine, and epinephrine. Dr. Michael Kessler, director of a seminar on Outpatient Surgical Techniques for the Non-Surgeon, said his group at a freestanding emergency clinic sees large numbers of pediatric patients, and TAC has worked well as a topical anesthetic for children as well as adults. The recipe for TAC (taken from the January 1980 Journal of the American College of Emergency Physicians, according to Kessler) calls for 300 mg. tetracaine hydrochloride powder; one-fourth ounce (7,090 mg.) cocaine flakes; 30 cc 1:1000 inject epinephrine, and distilled water. The tetracaine is dissolved in a small amount of distilled water; the epinephrine and cocaine added; and the mixture combined with distilled water to make 60 cc volume. It should be stored in a brown bottle and has a shelf-life of 21 to 30 days. Dr. Bevier asked Mr. Moran to compound some of this mixture. Mr. Moran did not keep cocaine in stock ordinarily, but he acquired some from a wholesaler and dispensed 60 cc. amounts of the TAC solution to Dr. Bevier on three occasions. On each occasion Dr. Bevier wrote a prescription for himself on a form on which "AB 8796510" appeared just under his signature. The prescriptions were dated September 8, November 3 and November 23, 1981, and were filled on the dates written, except for the first, which was not filled until September 14, 1981, perhaps because of a delay in obtaining ingredients. Mr. Moran was under the impression that Dr. Bevier was using the solution as a local anesthetic in his practice for procedures like the removal of warts. Solutions of this type are also used to anesthetize mucous membranes. Cocaine in solution with epinephrine is of no use to an abuser. Deposition of Charles L. Park, p. Testimony of Respondent. (T. 112) In early December of 1981, Dr. Bevier asked Mr. Moran for the TAC ingredients to keep on hold in his office so that he could mix the solution up along, as needed. Mr. Moran's only information about shelf life was what he had read in the article from the medical journal Dr. Bevier had shown him. He did in fact deliver the ingredients to Dr. Bevier, including four quarter ounce packages of cocaine hydrochloride flakes, on December 3, 1982. Dr. Bevier signed the official Drug Enforcement Administration form (DEA 222) required in connection with this transaction, and delivered it to the pharmacy. INVESTIGATOR ARRIVES After the cocaine flake purchases, Will A. Merrill, an investigator for petitioner Department of Professional Regulation visited Mr. Moran in the course of investigating Dr. Bevier. On May 27 and 28, 1982, Mr. Merrill examined respondent's records, and talked to Mr. Moran. Precisely what was said is a matter of dispute. At the very least, Mr. Merrill advised Mr. Moran that irregularities in Dr. Bevier's record keeping regarding Schedule II drugs were being looked into. Cocaine, Demerol (Meperidine) and Dilaudid are all controlled substances, and are listed on Schedule II in Chapter 893, Florida Statutes. The investigation culminated in an emergency suspension of Dr. Bevier's license to practice medicine on September 12, 1982. Thereafter the investigation of respondents began. DEMEROL AND DILAUDID Lige Williams, a cancer victim, was Dr. Bevier's stepfather. On July 14, 1982, and again on August 2, 1982, Mr. Moran filled prescriptions for Mr. Williams written by Dr. Bevier, each for sixty 100 milligram tablets of Demerol. He dispensed the medicine to Mr. Williams. On August 9, 1982, Mr. Moran dispensed a 20 milliliter ampule of Demerol to Dr. Bevier for office use after Dr. Bevier signed the appropriate Form 222. Dr. Bevier himself came into Lake Mary Pharmacy with a prescription for one hundred 100 milligram tablets of Demerol for Lige Williams on August 13, 1982, and Mr. Moran filled the prescription. On August 16, 1982, Mr. Moran dispensed a second 20 milliliter ampule of Demerol to Dr. Bevier for office use, again after Dr. Bevier signed the appropriate Form 222. Three days later Dr. Bevier presented another prescription for a hundred 100 milligram tablets of Demerol for Lige Williams, which Mr. Moran filled. On August 26 and September 8, 1982, Dr. Bevier signed two more Form 222s and Mr. Moran dispensed two more 20 milliliter ampules of Demerol for office use. Dr. Bevier told Mr. Moran that the Demerol ampules were "primarily . . . for Mr. Williams' use." (T. 103) The parties stipulated that Mr. Moran dispensed another fifty 100 milligram tablets of Demerol at some time "from or about May 1, 1981 until August 30, 1982" to unspecified person(s) under unspecified circumstances. On September 9, 1982, Mr. Moran filled a prescription Dr. Bevier wrote and personally presented for Lige Williams for 100 four milligram tablets of Dilaudid. When Mr. Moran questioned the quantity of tablets, Dr. Bevier said that Lige Williams was leaving Lake Mary to go back to his own home and that he "want[ed] him to have enough tablets to get him up there and hold him until he can be seen by a physician up there." (T. 93) Dilaudid and Demerol in the sequence and dosages to be inferred from the prescriptions Mr. Moran filled for Mr. Williams, even assuming Mr. Williams received the full contents of all four ampules, are commonly and appropriately prescribed for terminally ill cancer patients, according to the uncontroverted medical testimony.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaints filed against respondents. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984. COPIES FURNISHED: Bruce D. Lamb, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. C. Hutchison, Jr., Esq. Hutchison & Mamele 230 North Park Avenue Sanford, Florida 32771 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Department of Professional Regulation Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact It was stipulated that the Respondent was certified as a law enforcement officer by the Petitioner on April 1, 1978. He holds certificate number 99-002304. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing the qualification and practice standards for law enforcement officers embodied in Chapter 943, Florida Statutes. Sometime in November, 1986, Diane Bouchard was traveling north on U.S. 1 in Nassau County. She acknowledged that she was traveling in excess of the lawful speed limit and believes she was traveling at approximately 60 miles per hour. Shortly after passing a truck weighing station, she observed a Nassau County Sheriff's patrol car, which had just passed her, turn around and follow her. She observed the blue light on that vehicle illuminate, at which point she turned to the side of the road and stopped. Mrs. Bouchard knew Officer Crews and he was acquainted with her and her family, including her husband. Mrs. Bouchard testified that Respondent got out of his patrol car and approached her vehicle while she was sitting in her parked vehicle behind the wheel. He did not ask her to get out of the vehicle. She says that he asked for her driver's license and she complied, handing Respondent her license. Mrs. Bouchard then testified that Respondent, while standing approximately 4 inches from her car door, told her that he had "clocked" her speed at approximately 75 miles per hour. He remarked that there was an $80 fine for such a traffic infraction and "points" which could be assessed against her driving record for a speeding violation. She stated that while he was standing next to her car door making these remarks, he began rubbing his penis through his clothing, becoming visibly sexually aroused. At approximately this same time, Mrs. Bouchard states that the Respondent told her that "we could work something out" regarding the ticket. Mrs. Bouchard then testified that the Respondent's actions and statement were taken by her to mean that he was attempting to extort sexual favors from her in return for forbearing to issue her a traffic citation. She maintains that she became extremely frightened as a result of these actions and attempted to dissuade the Respondent by reminding him that he knew her family. She maintains that the Respondent then stood alternately looking at her and looking at her driver's license for several more minutes and then announced that he was going to "let her go." She then drove home, according to her statement. Mrs. Bouchard maintains that she became very upset at this episode and was particularly sensitive to being victimized in this way because she had been sexually abused for approximately 13 years by her stepfather, even after she was married. She was reluctant to reveal the incident to her husband, but because she began having nightmares about the incident her husband became concerned, and so she told him about the episode approximately a week after the accident. She felt, however, according to her testimony, that no one would believe her if she reported the incident to law enforcement authorities. Approximately three months after the incident, however, she did report the matter to personnel of the Nassau County Sheriff's Department. The alleged incident supposedly occurred in close proximity to a truck weighing station at which a law enforcement officer was present and in close proximity, in the other direction, to a public campground. The incident occurred during daylight hours at approximately 5:30 or 6:00 p.m. on U.S. 1, a heavily traveled highway in Nassau County. The weigh station and campground are approximately a quarter of a mile apart. A Department of Transportation patrol car was at the weigh station and both the weigh station and the campground were in sight of the place where Mrs. Bouchard was allegedly stopped. Officer Crews was in uniform in a marked, Nassau County Sheriff's Patrol car. Mrs. Bouchard conceded that she had been speeding when she was pulled over and that Officer Crews never asked her to get out of her car. She conceded that he did not threaten her, touch her or actually expose himself to her. He did not write her a ticket. Mrs. Bouchard testified the reason she thought Officer Crews was "coming on" to her was because she associated certain gestures he was making with things her stepfather had done to her in the past. Mrs. Bouchard was referring to the history of sexual molestation of herself by her stepfather which she says occurred for an approximate 13-year-period after her mother kidnapped her from her natural father and she went to live with her mother and stepfather. During this time period and during the time in which Mrs. Bouchard elected not to report this alleged conduct by the Respondent, she and her husband were working at a garage that serviced Sheriff department vehicles and at which another police officer was employed. Police officers were frequent visitors to the garage, but she waited over three months before she spoke to anyone in law enforcement concerning this incident. Captain Chuck Moser of the Nassau County Sheriff's Department testified on behalf of the Petitioner. He interviewed Mrs. Bouchard on January 6, 1987. She told him that the above-described incident had occurred approximately 3 months earlier. She described the incident to Captain Moser much in the same way in which she described it in her testimony at hearing. Captain Moser did not reveal any other knowledge concerning the incident in question, and the Respondent, other than what Mrs. Bouchard had told him. Fuller Crews testified on his own behalf. He is 58 years old and has been married for the past 16 years. He was employed by the Nassau County Sheriff's Department from April 1, 1978 to November 10, 1987. In 1986, he was a lieutenant in the civil division and a traffic patrolman. He knows Mrs. Bouchard and her family and has even been fishing with her husband. In his work with the Sheriff's office, he has made several hundred traffic stops during his career. He does not remember every person that he ever stopped for a traffic infraction, nor did he make a practice of issuing a traffic citation to every person he stopped. Officer Crews often simply told offenders that he would let them go if they promised to slow down, or otherwise warned them with a lecture, depending upon the particular offender's attitude. He has no recollection of stopping Mrs. Bouchard, but does not deny that he may have done so. He adamantly denies ever asking Mrs. Bouchard for sex in exchange for forbearing giving her a traffic citation or making gestures which implied that intent. He stated that if he made any gestures in the act of getting out of his car and walking up to Mrs. Bouchard's car, it would have been in the nature of adjusting his gun belt or brushing his cigarette ashes off his trousers. The testimony of the Respondent and Mrs. Bouchard thus conflicts. There were no other witnesses to the episode. It is found that, even if Mrs. Bouchard did indeed feel that the Respondent was making sexual advances to her in return for his refraining from writing her a traffic citation, that her impression was mistaken. In reaching this finding, the Hearing Officer is mindful of the Respondent's apparent sincerity and candid demeanor on the witness stand, his past unblemished record, including his apparent record as a decent citizen and family man, as well as the unrebutted testimony concerning his past friendly relations with Mrs. Bouchard and her family. Mrs. Bouchard, on the other hand, while she may not have overtly lied about the circumstances of the incident, was mistaken in her impression of the Respondent's demeanor and intent in confronting her about the traffic infraction. It is found, based in part of Mrs. Bouchard's own testimony, that her impression of the Officer's intent in approaching her and manner of conversing with her, during this episode, was affected by her admitted past history of being sexually molested for a long period of time by her stepfather, such that she quite likely could have mistakenly associated some gestures, movements and comments made by the officer with a sexual advance or overture, when in fact the Respondent intended no such activity. Thus, Mrs. Bouchard's opinion, however sincere she holds it, is sufficiently colored and affected by her emotional situation, arising out of her past personal history, so that it cannot be considered competent evidence against the Respondent and cannot establish that the incident occurred as she described it. There is no other substantial evidence that would establish that the Respondent failed to maintain good moral character in regard to this incident, which is the only such incident charged in the Administrative Complaint.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Administrative Complaint filed against Fuller W. Crews, Sr. should be dismissed in its entirety. DONE AND ENTERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER NO. 89-1400 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. 4 Accepted. Accepted. Accepted. 7.-17. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in accordance with the clear and convincing evidence of record. 18. Accepted. Respondent's Proposed Findings of Fact 1.-13. Accepted. COPIES FURNISHED: Joseph F. White, Esquire Department of Law of Enforcement P.O. Box 1489 Tallahassee, FL 32302 Robert J. Link, Esquire Howell Lyles and Milton 901 Blackstone Building P.O. Box 420 Jacksonville, FL 32201 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302
The Issue The issue is whether the Petitioner, Harvey Donley, is liable for the jeopardy assessment as set forth in the Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990.
Findings Of Fact On June 9, 1989, Petitioner sold a quantity of cocaine to a confidential informant at Albertson's Food Store on Apalachee Parkway, Tallahassee, Florida. On June 9, 1989, Petitioner drove to Albertson's Food Store, parked his car, and got into the confidential informant's vehicle. Shortly after Petitioner had entered the confidential informant's vehicle and conducted a transaction of cocaine, he was arrested. At the time of Petitioner's arrest, one plastic bag containing cocaine was recovered from the seat next to where Petitioner had been seated. A second bag of cocaine was recovered from Petitioner's shirt. After Petitioner's arrest, Petitioner told Sgt. McKissack that he got the cocaine from one Paul Dorlag. Petitioner further told Sgt. McKissack that the bag of cocaine in his shirt pocket was his "cut" of the cocaine. After Petitioner's arrest, police officers executed a search warrant at Petitioner's residence. During the search, under the search warrant, a small quantity of paraphernalia and drug residue were seized in Petitioner's home. This paraphernalia consisted of a plastic cocaine straw. Other evidence seized during the search of Petitioner's residence consisted of a cedar box containing cannabis residue and one bottle of Insitol. After his arrest, Petitioner was charged with trafficking in cocaine. Twenty-five and one-half (25.5) grams of cocaine were recovered from Petitioner's person when he was arrested. The estimated retail price of the cocaine seized from Petitioner was $100 per gram. The estimated retail value of the total amount of cocaine seized from Petitioner amounted to $2,550. The Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990, is legally valid and mathematically correct. The 50% tax according to the revised assessment is $1,275. The 25% surcharge according to the revised assessment is $637.50. The penalty of 5% per month according to the revised assessment is $95.63. Interest accrued through August 2, 1990, amounts to $238.14. The total amount of the legal assessment against Petitioner is $2,246.27. The additional interest for the period from August 2, 1990, to the date of the hearing, January 31, 1991, amounts to $114.66. Interest continues to accrue until the assessment is paid. The total assessment due through January 31, 1991, is $2,360.93.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order upholding the revised assessment in the amount of $2,360.93, plus additional interest as shall become due after the date of the hearing. RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2734 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Revenue 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20(1-20) and 21(16). COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Harvey Donley 4918-B Crawfordville Road Tallahassee, Florida 32304 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Pursuant to a search conducted inside the Leon County Florida home residence of the Respondent and her husband, Lynwood Moore, the following items were discovered and seized by agents of the Leon County Sheriff's Department and the Tallahassee Police Department, pursuant to a search warrant: A brown print canvas bag which contained seven plastic packets. Each plastic packet contained cocaine, a controlled substance named or described in Section 893.03, Florida Statutes. The total aggregate weight of the cocaine within the seven bags was forty-five grams. The said brown print canvas bag also contained three bottles which themselves contained benzocaine, inositil, and procaine HCL, respectively. A brown case which contained a set of triple beam balance scales, graduated in metric weights. The said scales contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. The said residue was located on the weighing pan of the scales. Three smoking pipes which contained an aggregate of grams of cannabis, a controlled substance, named or described in Section 893.03 Florida Statutes. A transparent plastic bag which contained 1.9 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes. A cellophane cigarette pack wrapper which contained 2.4 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes. A brown glass vial which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. Attached to the said vial was a miniature spoon. Two transparent glass vials which each contained a - residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. A small gold colored straw or tube which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. A single edged razor blade which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. A partially burned, hand-rolled cigarette which contained .3 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes. The Respondent married Lynwood hove on June 27,1970, and the two have lived together as husband and wife since that date to the present time. The Respondent has lived at the Leon County Florida home residence described in Paragraph One since 1977. The Respondent was certified by the Criminal Justice Standards and Training Commission on November 29, 1974 as a law enforcement officer and issued certificate Number 02- 13249. Respondent was employed with the Florida State University Police Department on November 29, 1974, and assigned as a uniform patrol officer. The Respondent performed this function as a full-time employee until October 22, 1982 when she was promoted to the position of Education Officer. The Respondent performed this function as a full-time employee until February 15, 1983. (a) On June 4, 1975, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that upon the arrest and search of an individual on a charge of vandalism, three cigarettes which appeared to be marijuana were found in the individual's wallet. The Respondents wrote and filed an evidence impoundment form regarding the incident which described her impoundment of three suspected marijuana cigarettes and a "Zig Zag" package. On November 15, 1975, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that she and another officer had stopped a motorist for a traffic violation. The Respondent stated that the other officer conducted a pat down search of the motorist and discovered what appeared to be a marijuana cigarette in the motorist's shirt pocket. On October 20, 1976, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that during a pat down search of an individual she found marijuana on the individual's person and seized it. On December 21, 1977, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that during the search of an arrested person's automobile, she discovered a plastic box which contained one suspected cannabis cigarette, a plastic bag of suspected cannabis and a plastic bag of suspected hashish. The Respondent stated in her report that she arrested the person for possession of cannabis and hashish. The Respondent wrote and filed an evidence impoundment form regarding the incident which described her impoundment of a rolled cigarette, a plastic bag of marijuana, a partially smoked cigarette, a plastic bag of hashish, a cigarette roller and cigarette papers. On May 9, 1978, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that she found a marijuana cigarette in a truck that three juveniles stood by. The Respondent also stated in her report that she observed rolling papers that were apparently dropped on the ground by the juveniles upon her approach. The Respondent's report also indicated that one of the juveniles was searched and the search uncovered a plastic bag containing marijuana. The Respondent wrote and filed an evidence impoundment form regarding the incident which described her impoundment of suspected marijuana cigarettes. On July 25,1979, the Respondent wrote and filed a police report as a reporting officer. The Respondent stated in the report that she had assisted another officer in stopping a motorist. The Respondent stated in her report that upon looking into the motorist's vehicle, she saw a plastic bag containing suspected cannabis which she seized. The Respondent stated in her report that a further search of the motorist's vehicle revealed a rolled cigarette of suspected cannabis, eleven pieces of cigarettes and suspected cannabis seeds. The Respondent arrested the motorist for possession of cannabis. On October 8; 1979, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that she arrested a person for driving under the influence of alcohol and possession of less than twenty grams of cannabis. The Respondent wrote and filed an evidence impoundment form regarding the arrest which described her impoundment of a brown pipe, two packages of smoking papers and cannabis. Tallahassee police received information that Lynwood Moore, husband of Respondent, was selling drugs in this area. In a combined operation with local authorities and the federal drug administration, Richard G. Hafner, an FDLA agent in Panama City, came to Tallahassee to set up a meeting with Moore to buy cocaine. With the assistance of an informant, Hafner contacted Moore and arranged for the informant to pick up one ounce of cocaine on January 18, l983. On February 2, 1983 Hafner and the informant met Moore at a filling station and they arranged for Hafner to come to an address that evening to buy an ounce of cocaine. Hafner, accompanied by the informant who was pregnant at the time, went to the address which he discovered to be a house outside the city set back from the highway more than one hundred yards with no lights on. Two or three cars were parked in front and Hafner decided the area was too dangerous under the circumstances and he returned to Tallahassee. The informant then called Moore's residence and Respondent answered the telephone. Hafner took the phone from the informant and told Respondent he was calling about the "puppies" and that the area selected to purchase the puppies was unsatisfactory as being too remote and requested she get the message to Lynwood. Hafner had been told by the informant that in telephone conversations with Moore one "puppy" was to be used to designate one ounce of cocaine. When Hafner asked Respondent to give the message to her husband, she appeared to fully understand the message she was to deliver. At a subsequent meeting with Hafner, Lynwood Moore became suspicious of Hafner and refused to sell him any cocaine. For several years Lynwood Moore has bred, raised and sold greyhound dogs, both as a business and an avocation. Respondent testified that she frequently got calls from prospective greyhound buyers inquiring about buying dogs from her husband. Some of these calls would be late in the evening and be received from women. Geneen Marsh, the informant, agreed to help police authorities arrest Lynwood Moore in exchange for releasing her husband from prison. Ms. Marsh had been buying cocaine from Moore for more than six months making purchases of 1/8 ounce twice per week. She often called the Moore residence and on occasion talked to Respondent who would pass messages to her husband. Marsh never received any cocaine from Respondent but Respondent was at home on several occasions when Marsh picked up her "buy" at the Moore residence. On one occasion Lynwood Moore had the balance scale on which the cocaine was weighed in the room while Marsh was there to pick up her buy and Respondent came into the room where the scales were in clear view. Following the controlled buys of cocaine from Lynwood Moore, the police obtained a search warrant and, on February 15, 1983, a search was made of the Moore's residence. Upon arrival of the police officers accompanied by Lynwood Moore they allowed Lynwood to go in first to alert his mother who was living with them so she would not be too upset at the arrival of the police. Upon entering the residence the police put all occupants in the living room while the search was conducted. Upon their arrival Respondent was in the bathtub washing her daughter's hair. She was told the police were there and when she exited the bathroom she was taken immediately to the living room. Upon being told the nature of the search Respondent gave no evidence of surprise but remained stoical. Two police officers searched the master bedroom occupied by Respondent and her husband. The officer who searched the walk-in closet found the items in findings l(a) and l(b) above on the floor of the closet. Although these bags were under hanging clothes on the side of the closet containing men's clothing, they could be seen without first having to remove the clothes which partially obscured these bags. The aroma of cannabis was noted in the bedroom by the police officers. The other police officer, Spears, searched the remainder of the room. On the top of the dresser in the master bedroom Spears found a cup containing several .38 caliber bullets, a razor blade with some white powder, later identified as cocaine, on the cutting edge, and police collar insignia. Also on the dresser was a marijuana cigarette, a glass cutting screen, and a man's jewelry box. Inside the jewelry box were rings, cuff links, a bag containing marijuana, three bottles containing traces of cocaine, and many wrappers used to wrap bills in $1000 and $2000 bundles. In the bottom drawer of the night stand alongside the bed were three marijuana pipes containing some marijuana in each. These pipes were covered by letters, insurance policies and exercise instructions. Some of Respondent's personal effects were kept in this night stand. Lynwood Moore testified that his wife never touched any of his possessions or intruded on his side of the closet. She wouldn't dare open his jewelry box and look in it. He normally kept the cocaine in a detached building on his property but a few weeks before the raid brought the cocaine into the house where it would not absorb as much moisture as in the out building. He insisted his wife had no knowledge that he was dealing drugs and that he left home at all hours and returned when he pleased without offering any explanation for his actions. Respondent testified that she never looked on her husband's side of the closet that she had never seen any evidence of drugs in their residence that Lynwood had been raising and selling greyhounds for several years and she often received calls regarding purchase of these dogs that she never saw Ms. Marsh until she testified at the earlier Career Service hearing that she never walked in while Lynwood was dispensing drugs to Marsh and that she never saw a marijuana cigarette, the razor blade, scales, or any other evidence of drugs in her home. On the other hand Respondent, while undergoing training leading to certification as a law enforcement officer, received training in drugs, in drug identification and drug paraphernalia. She also received refresher courses from time to time. After her promotion to sergeant she was made education officer at the FSU police department and given the duty, inter alia, of instructing other officers in the prevention of drugs on campus. A display board with pictorial identification of various drugs and drug paraphernalia was on the wall in her office. As noted in finding of fact 5 above Respondent has made numerous arrests for possession of controlled substances and was fully capable of identifying a marijuana cigarette and paraphernalia used with controlled substances. Accordingly, her testimony that she never saw any drugs or any drug paraphernalia in her home is simply not credible. While she may never have participated in any of her husband's "dealings" the paraphernalia associated with such transactions could hardly have been kept in the master bedroom and Respondent be totally unaware of its presence.
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent, Willie A. Brown, was issued certificate number 43-83- 002-01, and certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on April 1, 1983. The Respondent was also issued certificate number 43-78-500-00, and certified as a correctional officer on July 1, 1981. At all times material to this case, the Respondent was employed as a police officer by the Lakeland Police Department. Respondent was assigned as a detective to the Special Investigations Unit (SIU) (now SID) of the Lakeland Police Department in 1987. Respondent's duties as a detective with the Lakeland Police Department- SIU were primarily the investigation, apprehension, and arrest of those individuals involved in the sale, delivery, and possession of illegal narcotics. The main goal of the Lakeland Police Department-SIU was to curb vice and illegal narcotics, and get them off the street. When Respondent began with the unit, there were five or six detectives. By 1989, the unit had grown to 18 detectives, two sergeants, and a lieutenant. The growth of the unit was due to the increase in illegal drug trade in Lakeland, especially of crack cocaine, which had reached almost epidemic proportions by 1989. Hand-in-hand with the increased drug trade was an increase in street- level violence, including drug related shootings, in certain areas of the city. As part of his duties, Respondent participated in "buy-busts" or sting operations and reverse sting or "reverse" operations. A sting or "buy-bust" requires an undercover officer or confidential informant (CI) under an officer's supervision to purchase illegal narcotics with previously recorded "buy" money issued by the Lakeland Police Department. Once the "buy" was completed, the purchased drugs would be field tested by the officer, placed into an evidence bag and marked, impounded into evidence, and then sent to a lab for analysis. The entire chain-of-custody would be documented from the time the officer obtained the drugs, to the time they were returned from the lab. The seller would either be arrested immediately after the sale, or a warrant for his/her arrest obtained within a short time. Whenever possible, the buy would be recorded by audio or videotape. In July of 1989, LPD had ample recording equipment available to its officers for such purposes. A reverse sting is the opposite situation where an undercover officer or CI under supervision sells drugs to another individual. Prior to conducting a reverse sting, the officer would obtain a known quantity of a previously tested substance (marijuana or cocaine) from a supervisor at the police department. The above was done for evidentiary purposes so that it could be proven in court that the substance sold to the targeted individual was, in fact, cocaine or marijuana. Once the drugs were sold to an individual, he/she was immediately arrested to avoid putting the drugs back on the street, or letting the drugs "walk." The drugs sold to the subject would be recovered, and sent to the lab to be re-tested. With one exception, authorized by the State Attorney's Office involving a very small amount of marijuana, drugs were not allowed to "walk" after a reverse. If a situation were to arise where drugs were to be "walked," prior approval would have to be obtained from the State Attorney's Office. Whenever possible, reverse sting transactions were to be audio or video recorded. Additional law enforcement assistance or backup was always required on a reverse sting operation for safety and evidentiary purposes. Before a reverse sting was conducted, prior approval or authorization from one of the SIU supervisors, was required. Once a reverse sting was completed, the money obtained from the purchaser was always required to be logged and impounded into evidence to preserve the chain of custody for evidentiary purposes. All stings and reverse stings were to be documented in reports. In July and August of 1989, the Respondent was thoroughly familiar with the procedures and proper methods for conducting stings and reverse sting operations. He had conducted or been involved in scores of such operations and, prior to the incidents giving rise to the instant case, had followed accepted procedures. It was a common occurrence that SIU detectives would locate and confiscate abandoned or discarded illegal drugs without making an arrest. Sergeant Tom Brown testified that although initially all "found contraband" had to be turned in and reported for each separate instance, he changed this policy due to the volume being recovered by 1989, and allowed his detectives to turn it in by the end of their shift to a superior to be placed in a safe, documented on one report, and disposed of later. Respondent was well aware of the policy for turning in found contraband, and prior to the incidents in the case at bar, followed said procedure. Although at one time, PDD detectives were allowed to resell found contraband in "quickie-reverse stings," this practice had been abandoned by 1989 due to problems with chain-of-custody and later proving in court the nature of the items sold. SIU investigators were also responsible for collecting intelligence information on individuals involved in criminal activity. In July of 1989, there were two individuals, Bill Lepere and Lynn Adams, responsible for maintaining intelligence reports or files. In addition, the members of SIU shared information at weekly meetings. In July/August 1989, after-hours work, such as arrests, had to be approved by a supervisor. In July/August 1989, if a SIU detective was investigating an active CI, either one working with Lakeland Police Department or another law enforcement agency, it was necessary to notify another member of SIU to avoid compromising an active investigation. In July/August 1989, if a SIU detective was conducting an investigation into alleged criminal activity of another police officer or law enforcement agent, it required notification and approval of a supervisor. By 1989, Respondent was a senior detective in DIU, who routinely followed policies and procedures, and even helped develop a SIU policy manual. In July and August 1989, it was standard operating procedure for investigations by SIU detectives and all Lakeland police officers to be conducted only after notifying and obtaining permission from a supervisor. In July and August 1989, all SIU detectives and all Lakeland police officers were to document their activities regarding investigations in reports in a timely manner. In July and August of 1989, all SIU detectives and all Lakeland police officers were to handle evidence collected in the course of their duties in accordance with departmental procedures. In July and August of 1989, all SIU detectives and all Lakeland police officers were prohibited from using evidence for their own personal use or from concealing it, destroying or tampering with, or withholding it in any way. In July and August of 1989, Respondent had a good working and trusting personal relationship with his supervisor, Sergeant Tom Brown. In July and August of 1989, Respondent also had a good working and trusting personal relationship with his partner, Vic White, and all members of the SIU. Respondent and his partner were considered two of the most self- motivated and aggressive officers in the unit, and Respondent had received citations and commendations for his work. In late 1988, Reggie Burns, a Special Agent (SA) with the Federal Bureau of Investigations (FBI) made contact with an individual by the name of Gloria Taylor. At the time, SA Burns, an agent since 1985, was assigned to the narcotics squad out of the Miami FBI Office. SA Burns met with Gloria Taylor in the Richland County Jail in Columbia, South Carolina, with the purpose of seeking her cooperation with them regarding some of her associates that were involved in criminal activity. Taylor became a paid FBI informant for SA Burns in exchange for Burns securing her release from jail. The FBI was aware of Gloria Taylor's criminal history, which made her more attractive as an informant due to her contacts. As with all confidential informants utilized by Burns and the FBI, Taylor was specifically instructed not to engage in criminal activity except at the direction of Burns. Taylor was instructed that whenever she was associating with those who dealt in narcotics, Burns was to be notified. It was not known whether Taylor abided by the above instructions prior to her dealings with Respondent. By their nature, CIs are hard to keep track of since their movements are not restricted. They are often in the streets, at large, and the agent may have to initiate contact with them. Taylor generally maintained contact with SA Burns from the time she began working with him until August of 1989. Prior to July of 1989, Burns became aware that Gloria Taylor was travelling to Tampa and Lakeland regularly, and possibly living in Lakeland. Due to the above, Burns contacted the FBI SA in Lakeland, "Doc" Gardner, as well as Sergeant Lynn Adams, Sergeant William Lepere, Sergeant Tom Brown, and Detective Ronnie Clayton, and possibly even Respondent of the Lakeland Police Department, and requested that they monitor Taylor's activities, and those of other individuals he was investigating at the time. SA Burns did not know Respondent prior to July 1989, and had not heard anything about him. Gloria Taylor first met Willie Brown in 1987. Although she had been stopped by him several times, he had never arrested her, and she had no disagreements with him. At all times in her contacts with Respondent, Taylor was aware that Respondent was a Lakeland Police Officer. In July/August of 1989, Gloria Taylor was a well-known criminal figure in the Lakeland area with a reputation for being involved in drug dealing, along with members of her family, T. Y. Brown and Gary Brown, who were known as the "Miami Boys." Gloria Taylor was thought by members of the Lakeland Police Department-SIU to be responsible for putting large amounts of illegal drugs out on the streets of Lakeland. In that time period, Gloria Taylor had a reputation for being a dangerous individual. Respondent, along with other members of the Lakeland Police Department, were involved in the arrest of Taylor's brother, T. Y. Taylor. T. Y. Taylor was convicted and sentenced to life imprisonment for that offense. Taylor was upset with the Lakeland Police Department, and Respondent personally, due to her brother's arrest and conviction. There were rumors that Gloria Taylor and her family had a "contract" out for the murder of Respondent, his partner Vic White, and Sergeant Tom Brown in retaliation for T. Y. Brown's arrest and conviction. In addition, there was a great deal of violence associated with drug dealers in general during that time period. Despite repeated attempts to make good cases on Gloria Taylor, she seemed to always escape prosecution or lengthy jail sentences. This was a source of frustration for Respondent and other SIU members. Prior to July of 1989, it became well-known in the SIU that Gloria Taylor was working with the FBI as an informant, and Respondent was aware of this fact. It was believed among members of LPD-SIU and Respondent that Taylor continued to engage in illegal drugs activities despite being an FBI-CI. During this same period of time, there was a feeling of mistrust by the LPD-DIU, not only of the FBI in general, but of SA Burns in particular. Lakeland resident, SA "Doc" Gardner, was the source of some of this distrust as he related that SA Burns appeared to be deviating from FBI policies. However, Gardner confirmed that SA Burns was authorized to come to the Lakeland area, and was conducting a legitimate investigation. This was related to the SIU and Respondent specifically prior to July 1989. Gardner made it known to the SIU and Respondent in particular that he was working with SA Burns. Gloria Taylor was a regular topic of conversation at SIU meetings prior to July 28, 1989. Prior to July 28, 1989, Respondent made only one mention at the SIU meeting that he was working on something regarding Gloria Taylor. Everyone else in the unit was working on something related to Gloria Taylor also. In July/August 1989, Respondent could have readily obtained assistance for an investigation into Gloria Taylor from Sergeant Tom Brown, his partner Vic White, or others in SIU. Respondent should have gotten authorization for such an investigation from Sergeant Brown. If Respondent had wanted to initiate an investigation of an FBI-CI like Gloria Taylor, it would have been considered a major case in July 1989. Such an investigation would require backup, prior authorization from a superior, and would have to be documented by reports. Prior to July 1989, Respondent had not conducted a major investigation without the knowledge, approval, and authorization of his superiors. Respondent never sought or received authorization from Sergeant Brown or anyone at the Lakeland Police Department to sell drugs to Gloria Taylor. Sometime in 1989, Respondent approached Gloria Taylor at a Lakeland residence, and took her for a ride in his Lakeland Police Department's unmarked vehicle. While they were in Respondent's vehicle, Respondent showed her a quantity of crack cocaine packaged in small-sized baggies inside a larger baggie. Respondent stated he had confiscated the cocaine during a drug bust. Respondent indicated to Taylor he wanted to "get rid of" the cocaine, and asked $700 for it. Ms. Taylor gave him $650, and agreed to pay him the remaining $50 later. Respondent later threatened to arrest Gloria Taylor if she didn't pay him the remaining $50, which she eventually did. Gloria Taylor later sold the $700 worth of cocaine to other individuals. Gloria Taylor, at first did not tell SA Reggie Burns of her drug purchase from Respondent, but did tell him later when confronted by SA Burns. At that meeting, Burns instructed Taylor not to meet with Respondent again until a controlled buy could be set up. SA Burns received permission from his Assistant Special Agent in Charge to conduct a monitored buy from Respondent to Gloria Taylor. The transaction was arranged for July 28, 1989, at McDonald's on Ariana and Central Avenue in Lakeland. Agent Burns, assisted by SA Pat Johnson, supplied Taylor with a recording device, which she hid in her bra, and prerecorded buy money. At this July 28, 1989, meeting, Respondent arrived in his Lakeland Police Department vehicle. Respondent did not pat Gloria Taylor down for weapons. Gloria Taylor met with Respondent, purchased approximately 10 pieces of crack cocaine from Respondent, and paid him $100 for the crack cocaine. Respondent indicated that the cocaine he sold Taylor was confiscated during a drug bust. During her discussion with Respondent on July 28, 1989, Taylor and Respondent discussed him giving her brother Gary Cocaine. Respondent indicated he could carry as much cocaine as he wanted while he was on duty, but if he was off duty, he might have to come up with an excuse. Respondent asked Taylor to keep him apprised of Reggie Burns' and the FBI's activities. Taylor did not acknowledge her relationship with Burns. Respondent cautioned Taylor not to tell anyone about their dealings. After the transaction with Respondent was completed, Taylor turned over the cocaine and tape-recording to SA Burns. SA Burns submitted the cocaine to the Drug Enforcement Administration (DEA) lab for analysis. The results were that it was, in fact, cocaine. At no time on July 28, 1989, or thereafter did Respondent attempt to arrest Taylor, or retrieve the cocaine he sold her. After the July 28, 1989 transaction, SA Burns notified the Tampa FBI Office of his investigation of Respondent. The Lakeland Police Department was also notified of the investigation. At no time after the Lakeland Police Department were notified did anyone come forward and inform SA Burns, or anyone at the FBI, that Respondent was conducting an authorized investigation of Gloria Taylor. SA Burns then had Taylor set up a second meeting with Respondent. The meeting took place at the same location as the July 28, 1989 meeting, at 12:15 a.m., on August 17, 1989. Gloria Taylor was given $600 in previously recorded and photocopied FBI "buy" money. Prior to the meeting, Gloria Taylor was searched, her vehicle was searched, and the other cooperating witness, Catherine Smith was searched, all with negative results; that is, no money or contraband were discovered. Gloria Taylor was again equipped with a recording device. Respondent arrived in the same unmarked vehicle, and Gloria Taylor entered his car while SA Burns and Johnson surveilled her. Respondent, again, did not pat Taylor down to see if she had any weapons. During the second monitored meeting between Respondent and Taylor, Respondent sold her 32 rocks of cocaine, and Taylor paid for it with $350 of the FBI buy money. Respondent told Gloria Taylor she could cut the rocks up, sell them, and double her money. Immediately following the transaction, Taylor met with SA Burns, and turned over the crack cocaine, tape recorder and tape, and excess money. SA Burns turned the 32 cocaine rocks in to the DEA lab for testing. The rocks tested positive for cocaine. At no time on August 17, 1989, did Respondent attempt to arrest Gloria Taylor, or retrieve the cocaine. Respondent never told Sergeant Brown about the sales on July 28 and August 17, 1989, after they were completed. Respondent never got authorization to let Gloria Taylor "walk" with the drugs sold to her on July 28 or August 17, 1989. Respondent never requested backup for his meetings with Gloria Taylor on July 28 or August 17, 1989. Respondent never received authorization to work overtime on drug investigation on July 28 or August 17, 1989. Respondent never filled out any intelligence reports on his anticipated or actual sales to Gloria Taylor. Respondent never had pretested drugs issued to him by a supervisor prior to his July and August 17, 1989, sales to Gloria Taylor. Respondent never placed into an evidence bag, marked, impounded, or turned in the money to the Lakeland Police Department from the July 28 or August 17, 1989, drug sales to Gloria Taylor. To date, no one, even Respondent's partner Vic White, has come forward to state Respondent told them of his drug sales to Gloria Taylor before- the-fact. Sergeant Brown never approved warrants against Gloria Taylor for either sale. Gloria Taylor received immunity and $4,000 from the FBI for her participation in Respondent's case. In February of 1991, Gloria Taylor was arrested by the Lakeland Police Department for trafficking in cocaine. In March of 1991, Taylor was sentenced to life in prison as a habitual felony offender. The FBI did not assist Taylor in any way in that case. Gloria Taylor was not paid anything or compensated in any way for her testimony at the hearing in the instant case. After the second sale of drugs from Respondent to Gloria Taylor, Respondent was arrested by members of the Tampa FBI Office and the Lakeland Police Department. The $350 FBI buy money was recovered from Respondent's person after his arrest. At no time during Respondent's conversations with Gloria Taylor did he ask her to become a confidential informant for the Lakeland Police Department. After Respondent's arrest, Sergeant Lynn Adams, assisted by then-FBI Agent "Doc" Gardner, conducted a thorough search of Respondent's vehicle and office. Prior to the search, Respondent's vehicle had been in FBI custody. There was no U.S. currency found in Respondent's vehicle. There were no intelligence reports, found in Respondent's vehicle. Notebooks found in the vehicle were secured, boxed, and placed in Lieutenant Roddenberry's office for safekeeping. Located in Respondent's car was a zip-lock bag with a small cocaine rock and a sip-lock bag with white powder, both field-testing positive for cocaine. The five $20 bills of FBI buy money from Respondent's first sale of cocaine to Gloria Taylor were not located by Adams or Gardner in the search of the vehicle. Adams and Gardner thoroughly searched Respondent's office, which had been padlocked since his arrest. Notebooks found in the Respondent's desk were placed into a box for safekeeping in Lieutenant Roddenberry's Office. The only U.S. currency located in Respondent's desk was a $1 bill altered to look like a $20 bill. The five $20 bills that were FBI buy money from the July 28, 1989, transaction were not located anywhere in Respondent's desk or office. There were no reports located in Respondent's desk or office. There were no notes or notations referencing Gloria Taylor found in Respondent's car, desk, office, or notebooks, although Adams and Gardner specifically looked for such notes. The search of the car and office took approximately three and a half to four hours. Respondent was indicted by a federal grand jury for two counts of distribution of cocaine within one thousand feet of a school, and one count of carrying a firearm while engaged in a drug trafficking crime. Respondent was acquitted of the charges after a jury trial in May 1990. Several members of the Lakeland Police Department believed Respondent was conducting his own "sting" operation at the time of his arrest, and would work with him again as a law enforcement officer. After his arrest, Respondent continued to testify on cases where he had been the arresting officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED. RECOMMENDED this 19th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4067 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30 ,31,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54(inpart) ,55,56,57(inpart),58,59,60,61,62,63,64,65,66,67,68,69,70,71,72,73,74,75,76,77,78 ,79,80,81,82,83,84,85,86,87,88,89,90,91,92,93,94,95,98,101,102,103,104,105,106,1 07,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,1 27,128,129,130,131,132,133,135,136,137,138,139,140,143(inpart),144,145,146,147,1 48,149,150,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,1 70 Rejected as insufficient evidence or as against the greater weight of evidence: paragraphs - 96,97,99,100,134,141,142,143(in part),151,152 Respondent's findings of fact Respondent's proposed findings of fact were submitted in an unnumbered format. For identification purposes, I have assigned a page and paragraph number to each full paragraph as they appear in Respondent's proposed recommended order) Accepted in substance: page 1, para. 1, para. 2 (in part); page 2, para. 2 (in part), para. 3 (in part); page 3, para. 2 (in part); page 4, para. 1 (in part), para. 2 (in part), para. 3 (in part); page 5, para. 2, para. 3 (in part), para. 4 (in part); page 7, para. 1 (in part), para. 2 (in part); page 8, para. 1 (in part), para. 2 (in part) Rejected as not supported by credible evidence: page 2, para. 3 (in part); page 4, para. 1; page 5, para. 3; page 5, para. 4; page 6, para. 1, para. 2 Rejected as irrelevant or subsumed: page 1, para. 2; page 2, para. 1, para. 2 (in part); page 3, para. 1, para. 2; page 4, para. 2, para. 3; page 5, para. 1, page 7, para. 1, para. 2; page 8, para. 1, para. 2 COPIES FURNISHED: Gina Cassidy, Esquire Assistant General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 C. Kenneth Stuart, Jr. P.O. Box 2177 Lakeland, FL 33806-2177 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue The issue presented in this case is whether there is just cause for the City of Cape Coral's decision to terminate the employment of Hector Calderon, a police officer with the City of Cape Coral Police Department.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The City of Cape Coral (the "City") employed Hector Calderon as a police officer in the operations division of the Cape Coral Police Department (the "Department") from January 11, 1997 through January 11, 2002, the effective date of his termination. Officer Calderon was employed as a patrol officer, and his main duties were traffic enforcement during the 6 p.m. to 6 a.m. shift. On October 29, 2001, Sgt. Keith Perrin of the Department received a telephone complaint concerning Officer Calderon from a woman named Cheryl Sugar. Ms. Sugar told Sgt. Perrin that Officer Calderon had lived with her over the past several months. She offered information about narcotics usage and deviant sexual behavior by Officer Calderon, both on and off duty. She specifically alleged that Officer Calderon had been taking cocaine. Ms. Sugar also told Sgt. Perrin that Officer Calderon had been seeing a woman named Nicole Beougher, whom he had met working at a Circle K store when he stopped there during his work shift. Ms. Sugar alleged that Officer Calderon had been taking Ms. Beougher on "ride-alongs" in his police car. Ms. Sugar was angry at Officer Calderon because she had only recently discovered that he had also been dating Ms. Beougher. She and Ms. Beougher had spoken to each other, and realized that Officer Calderon had been deceiving both of them. Sgt. Perrin made a report to Lt. Michael Maher, the Department's head of internal affairs. Lt. Maher contacted Ms. Sugar by telephone on the morning of October 30, 2001. Ms. Sugar reiterated her allegations and agreed to come in later that afternoon to give a sworn statement and submit to a polygraph examination. However, she telephoned Lt. Maher at 3 p.m. and stated that she had placed herself in an "awkward position" and could not give a statement after all. From that point forward, Ms. Sugar declined to cooperate with the Department, despite frequent attempts by Lt. Maher to secure her testimony. On or about November 3, 2001, officers from the Department responded to a domestic dispute call involving Officer Calderon and Ms. Sugar. The officers on the scene noted that Officer Calderon acted unusually. He was upset, shaken, and verbally abusive. He refused to leave the scene until Lt. Maher gave him a direct order to leave or go to jail. This incident, coupled with Ms. Sugar's earlier complaint, led Lt. Maher to place Officer Calderon on administrative leave and send him for a "fitness for duty" psychological evaluation. The evaluation was conducted by a psychologist on November 8, 2001. The psychologist concluded that Officer Calderon was not capable of returning to duty. Officer Calderon was placed on administrative desk duty and his patrol vehicle was taken from him. Officer Calderon's patrol vehicle was assigned to another officer, Robert Slager. Following routine procedure, Officer Slager inventoried the vehicle to assure that Officer Calderon's personal property was accounted for and returned to him. While conducting the inventory, Officer Slager discovered sixteen driver's licenses in the vehicle. The licenses were in a cup holder, in plain sight. Upon investigation, Lt. Maher determined that the driver's licenses had been confiscated by Officer Calderon during traffic stops over a four-year period. Department procedure called for confiscated licenses to be turned in to the records division along with the citation, but Officer Calderon simply kept them in his vehicle. Lt. Maher questioned Officer Calderon as to why he kept the licenses. Officer Calderon's only explanation was that they were his "personal collection." Several officers testified that they had heard of the practice of keeping confiscated driver’s licenses as trophies, but all denied that they did it themselves. They could not or would not name any other officer who indulged in the practice. Officer Calderon kept the licenses in plain sight, and his vehicle was inspected by his superiors on a regular basis, yet no disciplinary action was taken against him concerning the confiscated licenses until this investigation developed. Despite Ms. Sugar's failure to cooperate, Lt. Maher continued investigating her allegations. Ms. Sugar had provided the name of Nicole Beougher, and Lt. Maher contacted Ms. Beougher, who provided a sworn statement and testified at the hearing. In October or November 2000, Ms. Beougher was working nights in a Circle K store in Officer Calderon’s patrol zone. She was 18 years old. Officer Calderon came in, and they began talking. He started coming in frequently to talk to her. He gave her his business card, adding a handwritten note with the code for his voice mailbox at work. During their conversations, Ms. Beougher mentioned that she had never ridden in a police car, and Officer Calderon offered to take her on a "ride-along." At the time, the Department had a "ride-along" program as part of its community outreach. The program encouraged citizens to ride with patrol officers as they conducted their daily course of duties. Interested persons were required to fill out a release of liability form and permit the Department to run a criminal background check. By Department policy, each citizen was limited to one ride-along every six months. Ms. Beougher completed the form and went on a ride- along with Officer Calderon on Christmas Eve 2000. He picked her up at her mother’s house at 6 p.m. and drove to the police station for roll call. Then Officer Calderon and Ms. Beougher went out on the road on his patrol duties. They discussed personal matters, such as whether Ms. Beougher had a boyfriend. At around midnight, they drove to a secluded area on the north end of Cape Coral. Officer Calderon stopped the car. They both got out and walked to the rear of the car. Officer Calderon began kissing Ms. Beougher. Nothing further of a sexual nature occurred. Officer Calderon dropped Ms. Beougher off at her mother's house at approximately 5:30 a.m. on Christmas Day. In January 2001, Officer Calderon and Ms. Beougher began seeing each other regularly. On May 6, 2001, Officer Calderon moved in with Ms. Beougher. While they lived together, Officer Calderon, on duty, would stop by their apartment five or six times per shift, sometimes for as long as 45 minutes. On one or two of these occasions, they engaged in oral sex. While they lived together, Ms. Beougher rode along with Officer Calderon on his work shift on 15 to 20 different occasions. Ms. Beouger never filled out another release of liability form, and the number of ride-alongs was clearly in violation the Department's policy. However, the evidence at hearing established that the Department's enforcement of its policy was lax. Officer Calderon's shift sergeant saw Ms. Beougher with him on more than one occasion and made no inquiry. On one or two of these unauthorized ride-alongs, they drove to a secluded area of northern Cape Coral, and Ms. Beougher performed oral sex on Officer Calderon. One evening while they were living together, Officer Calderon brought home a small amount of cocaine and offered to use it with Ms. Beougher. She was afraid to use it, fearing that Officer Calderon was trying to set her up for an arrest. Ms. Beougher said she would use it if he did first. Officer Calderon snorted the cocaine through a rolled dollar bill. Ms. Beougher then joined him. From that point forward, Officer Calderon and Ms. Beougher used cocaine frequently on weekends when Officer Calderon was not working. Officer Calderon and Ms. Beougher frequently spent weekends at a Motel 6 in North Fort Myers. They did this to get away from their roommate and to be closer to the clubs downtown. They would drink heavily at the clubs, to the point where Ms. Beougher could not remember much of what occurred. They would bring other people, male and female, back to the motel and have sex with them. They also used cocaine while at the motel. Officer Calderon sometimes worked details at a bar called the Hired Hand Saloon, a place he also frequented when off duty. A prior acquaintance named Roger Montgomery worked there as a bouncer. Ms. Beougher testified that Mr. Montgomery was the source of Officer Calderon's cocaine. At the hearing, Mr. Montgomery confirmed the details of Ms. Beougher's testimony. At the Hired Hand, Mr. Montgomery would give Officer Calderon "bumps" of cocaine, i.e., small amounts sufficient for him and Ms. Beougher to get high. On at least two occasions, Mr. Montgomery sold $50 worth of cocaine to Officer Calderon. Mr. Montgomery never gave or sold cocaine to Officer Calderon while he was on duty. Mr. Montgomery never saw Officer Calderon appear to be under the influence of alcohol or any other drug while he was on duty. Mr. Montgomery never actually witnessed Officer Calderon taking cocaine, though he was certain that he saw him high on cocaine. Ms. Beougher testified that she and Officer Calderon used cocaine while at the Hired Hand. On one occasion when Officer Calderon was off duty at the Hired Hand, he asked Mr. Montgomery for cocaine. Mr. Montgomery did not have the cocaine on his person, but did have some in the ashtray of his truck. He gave Officer Calderon the keys to his truck, and Officer Calderon went out to the truck. When Mr. Montgomery later went out to his truck, the cocaine was gone. Officer Calderon invited Mr. Montgomery to the Motel 6 to use cocaine and have sex with Ms. Beougher and him. Mr. Montgomery wanted to go, but couldn't. Mr. Montgomery testified that Ms. Beougher, under the influence of alcohol and cocaine, performed oral sex on both him and Officer Calderon at the Hired Hand. Ms. Beougher could not recall this incident, but did not deny that it might have happened while she was under the influence. One evening at the Hired Hand, Officer Calderon gave Mr. Montgomery a bag of marijuana. Officer Calderon told him that he had confiscated the marijuana from a group of teenagers while on duty. Officer Calderon had earlier shown the marijuana to Ms. Beougher and told her the same story. On one occasion, Officer Calderon asked Mr. Montgomery to get him the drug Ecstasy. Mr. Montgomery made the attempt but was unable to get it because his seller's supplier had been arrested. Officer Calderon and Ms. Beougher took the drug Oxycontin on several occasions. Officer Calderon procured the drug from a person unknown to Ms. Beougher. Officer Calderon had no car other than his patrol vehicle, which he was authorized to take home. Ms. Beougher testified that while off duty, Officer Calderon drove the patrol vehicle under the influence of alcohol on several occasions. He also allowed Ms. Beougher to drive the police vehicle. Sometime in August 2001, Officer Calderon moved out of Ms. Beougher's apartment. He told Ms. Beougher he was moving because there had been a drug bust in the apartment next door, and he was concerned that the Department would somehow associate him with it. Officer Calderon's move also coincided with his learning that Ms. Beougher was pregnant with twins. Ms. Beougher was certain that Officer Calderon was the father. Officer Calderon did not deny it, but wanted to make certain prior to undertaking support obligations. The results of a DNA test were pending at the time of the hearing. Ms. Beougher testified that her drug use ceased when she learned she was pregnant, and that she never saw Officer Calderon take illegal drugs after she stopped taking them. During the investigation, Lt. Maher discovered that Officer Calderon failed to notify the Department of several address changes, in violation of General Order D-1, Section III.18. Officer Calderon admitted to the sexual allegations that occurred at the Hired Hand and the Motel 6. He denied having sex with Ms. Beougher in his patrol car, and denied that he had ever used any illegal drugs. Officer Calderon alleged that Ms. Sugar and Ms. Beougher were bitter about his seeing them both at the same time, and thus concocted a false tale of his drug usage. He contended that Mr. Montgomery, a known drug dealer, had been intimidated through fear of arrest into testifying, and that Mr. Montgomery was sexually involved with Ms. Beougher and thus part of the conspiracy. Officer Calderon's contentions about the opposing witnesses cannot be credited. Neither Ms. Beougher nor Mr. Montgomery knew the other's last name, and both credibly testified that their only involvement with each other was through Officer Calderon at the Hired Hand. Ms. Beougher admitted to being angry at Officer Calderon, but credibly denied that she invented her story of drug usage. Adding to her credibility was that she freely implicated herself in the illegal activities that occurred, rather than portraying herself as an innocent bystander. Mr. Montgomery admitted that his motive for testifying was fear of prosecution for his drug dealings. He was reluctant to testify against Officer Calderon. He did not want to get Officer Calderon in trouble. His testimony was credible and corroborated that of Ms. Beougher as to the particulars of occurrences at the Hired Hand. Officer Calderon had a prior disciplinary history, which Chief Gibbs testified played a role in his decision to terminate Officer Calderon. In 1999, Officer Calderon was given a eight-hour suspension without pay for failing to report the discharge of his service revolver. He and his live-in girlfriend at the time, Allison Gimello, were involved in a domestic disturbance. When the police arrived, they discovered bullet holes in a closet door. Ms. Gimello told police that Officer Calderon had fired his police weapon after threatening to kill her. She later changed her story, saying that she had accidentally fired the gun. Because of this ambiguity, Officer Calderon was disciplined only for not reporting the discharge of his weapon. He did not file a grievance or appeal his suspension. Also in 1999, Officer Calderon was disciplined for showing a photograph of himself, naked with an erection, to female employees of the Department. Without grievance or appeal, Officer Calderon received a 24-hour suspension without pay. Upon completion of the internal affairs investigation in the instant case, Officer Calderon was charged with the following: failure to notify the Department of an address change; loafing while on duty; use of a controlled substance while off duty; purchase and possession of a controlled substance while on and off duty; intentional violation of state law; conduct unbecoming a public employee; using the prestige of his official position or the Department's time, facilities, equipment or supplies for private gain; improper performance of his duties; engaging in sex while on duty and in a City of Cape Coral police vehicle; malfeasance or misfeasance in office; perpetration of an act or conduct which causes substantial doubt concerning an officer's honesty, fairness, or respect for the rights of others or for the laws of the state, irrespective of whether such act or conduct constitutes a crime; and violation of the rules of conduct of the Criminal Justice Standards and Training Commission ("CJSTC") by failing to maintain good moral character and having a pattern of conduct not consistent with state standards. Lt. Maher's internal affairs report, dated December 5, 2001, sustained all of the charges except loafing on duty and use of a controlled substance. Lt. Maher dropped the loafing charge after consulting with Officer Calderon's immediate superiors, who did not see a problem with his frequent visits to the Circle K store or to the apartment he later shared with Ms. Beougher, provided his productivity was unaffected. It was conceded at the hearing that Officer Calderon was one of the most productive officers in the Department throughout his employment. Lt. Maher dropped the drug usage charge because the only drug test given to Officer Calderon came back negative. At the outset of the investigation, Lt. Maher wanted to test Officer Calderon for drugs but was advised by the City attorney that he lacked reasonable suspicion to order a test. By the time his investigation built reasonable suspicion, Officer Calderon had been placed on administrative duty and was aware that the Department was looking into his activities. Nonetheless, Lt. Maher believed that, without a positive drug test, he could not sustain a charge of drug usage. At the hearing, Officer Calderon challenged the alleged inconsistency between the Department's finding there was insufficient evidence to support that he used drugs, but finding the same evidence sufficient to support that he bought and/or possessed drugs. This argument is rejected. The evidence at hearing established that Officer Calderon both possessed and used drugs. Lt. Maher's decision to drop one of the potential charges does not change the fact that the other charge was proven. Lt. Maher's report was forwarded to Officer Calderon's immediate superiors for a recommendation on corrective action. One of the superiors, Lt. Craig Durham, recommended termination. Officer Calderon's immediate superior, Sgt. John Dickman, recommended a 30-day suspension without pay or benefits. These recommendations then went to the division commander, Major B. A. Murphy, who recommended termination and forwarded the file to Chief Gibbs for his review on December 12, 2001. Officer Calderon elected to have the recommended discipline reviewed by a Department Disciplinary Review Board ("DDRB"). The DDRB was composed of five Department employees: two selected by Officer Calderon, two selected by the Department's administrators, and a fifth member selected by the other four. Lt. Maher presented the case for the Department. Officer Calderon presented his case in rebuttal. The DDRB then deliberated and rendered a decision. On December 19, 2001, the DDRB unanimously recommended termination. On December 21, 2001, Chief Gibbs entered a Final Notice of Disciplinary Action terminating Officer Calderon's employment. Officer Calderon sought and received an appeal of this decision with the City Manager. On January 10, 2002, Interim City Manager Howard Kunik upheld the decision to terminate Officer Calderon's employment.
Findings Of Fact Harlen Brown, was called and testified that he is a member of a corporation which owns the property which is the subject of this hearing and is located at 477 Northwest Lucy Street, Florida City, Florida. He testified that the licensee rented the space from the corporation on a month to month basis and that he was aware of the charges pending against the licensee. 1/ Brown stated that he was experiencing problems with licensee Washington and that residents of the community had also expressed their problems which were in the nature of a nuisance to the community but that the residents are not criminally inclined. Brown indicated that he would file an application to operate the premises as a beer and wine disco arrangement and that it was his intent to renovate the premises and cater to adults and not minors. He expressed the opinion that the problems stemmed from the prior lessees. Brown urged that if the licensee's license was revoked, that it be done without prejudice. Michael Somberg, a beverage officer for approximately 18 months testified that he visited the Spot Bar on November 2, 1975, along with public safety officers Swain, Davis and others at approximately 12 o'clock, based on complaints that minors were consuming alcohol. Police officers that were also on the scene made an I.D. check of all the occupants on the premises and detained a juvenile, Larry Melvin, whose age as subsequently established revealed that he was 15 years old. He at the time of his detainment was carrying a sealed can of Miller's Beer. Somberg tasted and smelled the beer and determined that it was an alcoholic beverage. He placed Melvin under arrest and the beer was given to Officer E. W. Pfitzenmaier, who in turn submitted it to the crime laboratory bureau of the Metropolitan Dade County Public Safety Department for a laboratory analysis report. The examination conducted on the beer submitted that it contained ethyl alcohol 2.01 percent by volume or 1.61 percent by weight. Somberg testified that there was a flurry of activity on the premises when they announced themselves as beverage agents and/or policemen and that there was an attempt by the patrons to rid themselves of several packets and other items which turned out to be contraband. Somberg found one aluminum packet which contained 8 small packets of what appeared to him to resemble cocaine. He also gathered small amounts of marijuana and other paraphernalia from the floor of the premises. He retained the paraphernalia and had a field reagent test conducted on the narcotics. Present with Somberg was Officer Pfitzenmaier who also assisted in gathering the large wrapper which contained the 8 small packets of the white substance which according to him resembled cocaine also. Pfitzenmaier testified that he, at all times, maintained the confiscated items under his care, custody and control until turned over to the Dade County Laboratory Department. The various reports and items were received in evidence and marked for identification as Board's Exhibits 3 through 10. Also introduced was the notice of hearing which was issued to Licensee Washington and as Exhibit Number 12 the notice to show cause why his license should not be revoked. An examination of the items revealed that the licensee and/or his agents sold to a minor a liquid containing ethyl alcohol; that among the items confiscated was heroin and marijuana i.e., 13.6 grams of marijuana and heroin and 8 small packets containing cocaine. Also introduced was a carton containing 100 packages of non Florida tax paid cigarettes which were found on the licensed premises on January 8, 1976. This possession violates Florida Statutes 561.29(1)(B).
The Issue The issue in this case is whether Respondent's assessment of sales tax against Petitioner pursuant to Section 212.0505, Florida Statutes, should be upheld.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: By Notice of Assessment and Jeopardy Findings dated October 15, 1990 (the "Assessment"), Respondent, Department of Revenue (Department), determined that taxes imposed under Section 212.0505, Florida Statutes, were due from Petitioner, Jose A. Espino, for the unlawful sale, use, consumption, distribution, manufacture, derivation, production, transportation or storage of a controlled substance, to wit: cocaine. Specifically, the notice provided Petitioner with a "Notice of Assessment of tax, penalty, and interest on the deficiency" as follows: Date of Transaction or Incident (On or About) August 22, 1990 Estimated Retail Price 2 Kilo Cocaine $25,000.00 25% Surcharge [s.212.0505(1)(a), F.S.] $12,500.00 25% Surcharge [s.212.0505(1)(b), F.S.] $ 6,250.00 Penalty of 5% per month, maximum of 25% of Tax and Surcharge Due [s.212.12(2), F.S.] $ 937.50 Additional Penalty of 50% [s.212.12(2), F.S.] $ 0 Interest of 1% per month [s.212.12(3), F.S.], accrues at the rate of $6.16 per day. INTEREST computed thru 9/21/90 $ 49.28 Total Amount Due with this Notice $19,736.78 The factual basis for the Assessment was Petitioner's involvement in the transactions described in Findings of Fact 4-9 below. Petitioner filed a timely Petition to Challenge the Notice of Assessment and Jeopardy Findings. The only basis for the challenge set forth in the Petition was a contention that Petitioner was not engaged in the unlawful transportation of cocaine and that Section 212.0505, Florida Statutes was not applicable under the facts and circumstances of this case. During discovery and at the formal hearing in this case, Petitioner also challenged the estimated retail price used by Respondent in making the calculations set forth in the Assessment. Petitioner has not contested the mathematical accuracy of the Assessment nor has Petitioner contested the form of the Assessment or presented any evidence that the procedures for issuing the Assessment were improper. No evidence was presented that Petitioner has paid the sales tax assessed by Respondent or that the sales tax assessed has been paid by another individual on his behalf. In August of 1990, Petitioner, Jose A. Espino, was the owner of a paint and body shop located at 12524 S.W. 128th Street, Miami, Florida. Petitioner was present at the paint and body shop on August 22, 1990. On this date, he had agreed to meet with an individual who was working as a confidential informant for the Metro-Dade Police Department. Petitioner had previously negotiated with this confidential informant to sell four (4) kilos of cocaine at $30,000 per kilo. On August 22, 1990, Jerry Hull, a senior narcotics detective with the Metro-Dade Police Department, and the confidential informant drove to Petitioner's place of business. Detective Hull was seated on the passenger side of the front seat and observed the Petitioner coming out of the building carrying a maroon utility bag. Petitioner approached the vehicle occupied by Detective Hull and the confidential informant. Detective Hull got out of the vehicle and allowed Petitioner to get into the front seat. Detective Hull got into the back seat and the confidential informant drove the car east on S.W. 128th Street. As the confidential informant drove the vehicle, Detective Hull introduced himself to Petitioner and asked if he "brought the merchandise..." Petitioner stated that he had and inquired if Hull had the money. By his statements, Petitioner acknowledged his readiness to sell the cocaine he brought into the van. After inquiring about the money, Petitioner opened the utility bag he had carried into the van and showed Detective Hull a package. Petitioner gave the package to Hull and opened a cut previously made in the wrapping exposing a white substance inside. Detective Hull asked Petitioner for a sample. Based on his experience, Detective Hull identified the substance in the package as cocaine. Petitioner has, by virtue of the Respondent's Request for Admissions, admitted the substance he was carrying was cocaine. Petitioner told Detective Hull he had two (2) kilograms of cocaine in the bag. The Request for Admissions confirm that Petitioner carried two (2) kilograms of cocaine into the vehicle. Shortly after Petitioner showed Detective Hull the cocaine, a police car pulled up behind the van driven by the confidential informant. The police stopped the van and Petitioner was arrested and charged with trafficking in cocaine. No evidence was presented as to the disposition of the criminal charges. A copy of the police arrest report was forwarded to the Department of Revenue. As noted above, the Department of Revenue issued the Notice of Assessment and Jeopardy Findings on October 15, 1990. This Assessment was issued based upon the information contained in the Metro-Dade Police arrest report. As set forth above, the Assessment was issued in the amount of $19,736.78. The estimated retail price used by the Department of Revenue in calculating the tax due was $12,500 per kilogram. This estimate of retail price was derived from a price list compiled by the Florida Department of Law Enforcement (FDLE). The price appearing in the FDLE report is based upon average prices for various types of illegal narcotics sold throughout Florida. The FDLE price list used by DOR in preparing the Assessment is segregated by the type of drug and by various regions of the state. The price used in this Assessment was based upon the FDLE report compiled from information available as of June 7, 1989 for the Miami region. This region included Dade, Broward and Palm Beach counties and included prices for transactions involving the sale of one (1) kilo or more of cocaine. Thus, the report reflects the economic fact that larger quantity purchases occur at relatively lower prices. The price of cocaine rose sharply between 1989 and 1990. A subsequent update of the FDLE report utilizing information available as of August 1, 1990, revealed prices in the Miami region rose to $22,000 for kilogram size sales of cocaine. Thus, it appears the price used in the Assessment in this case is significantly lower than either the anticipated sales price of the parties ($30,000 per kilo) or the price reported by the FDLE in its later report (August 1, 1990). If anything, the Assessment was based on a conservative estimate of actual retail prices in the Miami area at the time. Petitioner has not provided any persuasive evidence to show the Department of Revenue's estimated price of $12,500 per kilo is inappropriate. Interest on the Assessment continues to accrue at the rate of $6.16 per day since September 28, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Jose A. Espino, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1989), and assessing the amount of such liability at $19,736.78, plus interest at the rate of $6.11 per day since September 28, 1990. DONE and ENTERED this 31st day of July, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1992. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 3 and in the Preliminary Statement. Rejected as constituting legal argument. While the Petition in this case did not challenge the mathematical accuracy of the tax assessment, Petitioner asserted in discovery and at the formal hearing that the estimated retail value utilized by Respondent in making the Assessment was not accurate. This suggestion is rejected. As set forth in Findings of Fact 12 and 13 and Conclusions of Law 12, the estimated retail value utilized by Respondent in this case was reasonable. Rejected as vague and constituting legal argument rather than a Finding of Fact. Subordinate to Findings of Fact 12 and 13. Subordinate to Findings of Fact 5 and addressed in Conclusions of Law 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in the Preliminary Statement. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 3. Addressed in the Preliminary Statement. 6. Adopted in substance in Findings of Fact 4. 7. Adopted in substance in Findings of Fact 5. 8. Adopted in substance in Findings of Fact 5. 9. Adopted in substance in Findings of Fact 6. 10. Adopted in substance in Findings of Fact 7. 11. Adopted in substance in Findings of Fact 8. 12. Adopted in substance in Findings of Fact 9. 13. Adopted in substance in Findings of Fact 10. 14. Adopted in substance in Findings of Fact 11. 15. Adopted in substance in Findings of Fact 12. 16. Adopted in substance in Findings of Fact 13. COPIES FURNISHED: Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Thomas Herndon, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Angel M. Gonzalez, Esquire 28 W. Flagler Street Suite 806 Miami, Florida 33130 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550
