The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all of his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 2002 until 2011, including all times relevant to this case, Petitioner Jonathan Bleiweiss ("Bleiweiss") was employed as a deputy sheriff by the Broward Sheriff's Office. As a public employee, he became a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). On February 12, 2015, Bleiweiss pleaded guilty in the Broward County Circuit Court, Seventeenth Judicial Circuit, to 14 counts of armed false imprisonment.1/ False imprisonment, as defined in section 787.02(1)(a), Florida Statutes, is a felony of the third degree. This crime must be reclassified upward, however, where, as here, "the defendant carrie[d], display[ed], use[d], threaten[ed] to use, or attempt[ed] to use any weapon or firearm" while committing the felony, unless an exception applies, which none did in Bleiweiss's case. See § 775.087(1)(c), Fla. Stat. Accordingly, armed false imprisonment, as charged against Bleiweiss, is a second-degree felony. Based on Bleiweiss's pleas, the court entered judgments of conviction adjudicating Bleiweiss guilty.2/ The Amended Information from one of the criminal cases, which is dated October 1, 2009, sets forth the ultimate facts underlying each of the false imprisonment charges to which Bleiweiss entered a plea of guilty, as follows: [O]n or between [various dates], in [Broward County, Florida, Bleiweiss] did forcibly, by threat, or secretly confine, abduct, imprison, or restrain [the alleged victim] without lawful authority and against his will, and during the commission thereof Jonathan Bleiweiss carried or displayed a firearm . . . . By pleading guilty, Bleiweiss admitted the foregoing allegations, which the undersigned accordingly adopts as findings of fact herein.3/ These facts, however, which closely conform to the elements of the offense, shed little light on what actually happened. At the plea colloquy, Bleiweiss stipulated to a few additional facts, agreeing that if the "cases were to proceed to trial the State would prove that . . . while working as a Broward Sheriff's deputy while dressed in full police uniform and driving a marked police vehicle [Bleiweiss] did forcibly by threat or secretly confine certain individuals whose initials are AL, JM, SG, MP, LS, AP, and JH against their will, and in the course thereof . . . exhibited a firearm." These undisputed factual grounds for Bleiweiss's plea are adopted as findings, as well. The court sentenced Bleiweiss to five years in prison, to be followed by ten years on probation. As of the final hearing in this case, Bleiweiss was incarcerated. In due course the Division learned of Bleiweiss's pleas and adjudications of guilt. Upon review, the Division determined that Bleiweiss had been convicted of "specified offenses" (a legal term that will be discussed below) and concluded that, consequently, he had forfeited his rights and benefits as a member of the FRS. By letter dated November 24, 2015, the Division notified Bleiweiss of its preliminary decision regarding the forfeiture of his retirement benefits and offered him an opportunity to request a formal administrative proceeding to contest the determination. Bleiweiss timely requested a hearing. Although not directly relevant to the disposition of this dispute, it is a fact that, when he was charged with armed false imprisonment, Bleiweiss was also charged with multiple crimes relating to sexual battery upon various persons in his custody. The government nolle prossed these charges simultaneously with the entry of Bleiweiss's guilty pleas. Therefore, the government never proved that Bleiweiss had committed any sex crimes, as alleged, and, obviously, he was not convicted of any such crimes. At the final hearing in this proceeding, the Division could have offered nonhearsay evidence——e.g., the testimony of an alleged victim, eyewitness, or Bleiweiss himself——tending to establish that, in the course of committing the acts of false imprisonment for which he was convicted, Bleiweiss additionally committed sexual batteries against the person or persons whom he had unlawfully detained. The Division, however, did not offer any direct, nonhearsay evidence that during the commission of the felonies to which he pleaded guilty, Bleiweiss had sought or secured any personal gain or advantage in the form of sexual gratification or elsewise.4/ Moreover, when asked at hearing by the Division's counsel whether he had engaged or attempted to engage in sexual activities with any of the persons whom he falsely imprisoned, Bleiweiss testified under oath that he had not. The record contains scant evidence, if any, concerning the actual circumstances surrounding the commission of the crimes to which Bleiweiss pleaded guilty. Bleiweiss testified that it was his understanding that the factual bases for the guilty pleas were that he had conducted traffic stops without probable cause (thereby committing the crime of false imprisonment); conducted searches without probable cause (committing simple battery); and carried a holstered gun, resulting in the upward reclassification of the false imprisonment charge from a third- to a second-degree felony. Bleiweiss made clear, however, that this was not what actually happened, as a matter of historical fact, but rather that this was what he understood to be the factual predicate for the plea agreement. He believes that, in fact, he did nothing wrong and was not guilty of any crimes.5/ Although Bleiweiss did not testify about what he actually did that resulted in his being (as he sees it) wrongfully charged, prosecuted, convicted, and imprisoned, he declared that he had "no problem with" doing so if the undersigned wanted to know. The undersigned elected to let the Division inquire about this, but the Division did not pursue the matter. The result is that the only facts regarding Bleiweiss's conduct which the undersigned can consider in determining whether he committed a specified offense are those set forth above in paragraphs 3 and 4 (the "Basic Facts"). Because the Division, not Bleiweiss, has the burden of proof in this case, the adverse consequences of insufficient evidence fall on the Division. The Basic Facts do not directly establish that Bleiweiss committed the crimes of false imprisonment with the specific intent to defraud the public or the Broward Sheriff's Office of the right to receive the faithful performance of his duties as a deputy, which the Division must prove as a condition of forfeiture. There is, indeed, no persuasive direct evidence in the record of Bleiweiss's intent. Because false imprisonment is a general intent crime,6/ moreover, the commission of this crime does not, without more, give rise to a reasonable inference of fraudulent intent. Here, the Basic Facts establish, in addition to the bare elements of the crime, that Bleiweiss committed false imprisonment while dressed in uniform, carrying a gun, and driving his police car. These facts are not only consistent with the conclusion, but persuasively demonstrate (and it is found), that Bleiweiss used the power of his official position in the commission of these crimes——an additional element that the Division needed to prove. There can be little doubt that Bleiweiss's ability to detain individuals was significantly enhanced, if not dependent upon, the authority of his office, which was literally worn upon his person. Fraudulent intent is another matter. This is because police officers are called upon in the proper exercise of their duties to detain or restrain persons, forcibly or by threat, against their will.7/ The only fact that necessarily distinguishes a lawful arrest from an act of criminal false imprisonment is the presence of "lawful authority." Thus, a police officer who makes a traffic stop without reasonable suspicion,8/ or a warrantless arrest without probable cause,9/ theoretically could commit the crime of false imprisonment——which, to repeat, is a general intent crime that can be committed without the intent to unlawfully detain the victim——even while intending to perform his official duties faithfully; put differently, the commission of false imprisonment is not necessarily so inconsistent with the faithful performance of a police officer's duties that the commission of the crime inevitably implies an intent to defraud on the perpetrator's part.10/ The upshot is that while there is a little more here, factually speaking, than the bare elements of false imprisonment to consider, the circumstantial evidence is yet insufficient to persuade the undersigned to find, by inference, that Bleiweiss intended to defraud the public or his employer, so as to make it appear that he was faithfully discharging his duties when he was not. On the instant record, the undersigned can only speculate that this was the case——and that is not enough. The evidence is even weaker on the question of whether Bleiweiss, in committing the crime of false imprisonment, sought or obtained a profit, gain, or advantage for himself or another person, which is something else that the Division must prove. As previously discussed, the record is devoid of evidence sufficient to establish that Bleiweiss obtained or sought a profit, gain, or advantage for himself in the form of sexual gratification or the fulfillment of some other "untoward intentions." The Division argues that Bleiweiss "gained an advantage over the individuals [whom he falsely imprisoned] by employing his uniform, patrol vehicle, firearm, and general status as an officer of the law who must initially be obeyed . . . ." Resp.'s PRO at 11. Such an "advantage," however, was inherent in the power, rights, privileges, and duties of Bleiweiss's position as a deputy sheriff and was something he had whenever he went to work. An advantage a public employee enjoys by virtue of the power, rights, privileges, or duties of his position cannot be the advantage realized or sought as the object of a "specified offense" as defined in section 112.3173(2)(e)6., Florida Statutes, for the obvious reason that, if it could, the "profit, gain, or advantage" element would always be met——and thus would be unnecessary. The Division's argument on this point must, therefore, be rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Bleiweiss his rights and benefits under the FRS and providing for payment to him of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 7th day of June, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 7th day of June, 2016.
The Issue The issue is whether Petitioner should revoke, suspend or otherwise discipline Respondent’s certification as a law enforcement officer pursuant to Section 943.1395(7), Florida Statutes.
Findings Of Fact Petitioner issued Certificate Number 91034 to Respondent on August 24, 1984. At all times material to this matter, Respondent worked as a patrolman for the City of Chiefland Police Department. During the last couple months of his active duty service, he was training to become a K-9 officer. In 1993, Petitioner issued a letter of guidance to Respondent and placed him on one year of probation after Respondent admitted that he had engaged in sex while on duty. On March 17, 1994, Henry W. Nicholson became Chief of Police in the City of Chiefland. In the summer of 1994, Michelle Hallman (formerly Michelle King) worked at ABC Pizza. She was eighteen years old at that time. On days that she was not working, Michelle sometimes went to ABC Pizza to help the other employees close up. On one such evening, Ms. Hallman met Respondent and Officer Hicks in the ABC Pizza Parking lot. They had a casual conversation in which Ms. Hallman joked that she would tell the Chief that Respondent had pinched her on the butt. Respondent laughed and replied that he would tell the Chief that Ms. Hallman dropped on her knees and begged. Respondent also told Ms. Hallman that he did not need that kind of trouble again. The Chief pulled into the parking lot while Ms. Hallman was talking to Respondent and Officer Hicks. The Chief needed to let Respondent know that he was not planning to go to K-9 training with Respondent that evening. About a month later, on June 10, 1994, Respondent was patrolling near a community center known as the Pine Land Center. He saw Ms. Hallman riding by in her car. He and Ms. Hallman pulled their respective cars into the parking lot of the community center and had another casual conversation. During this conversation, Ms. Hallman asked Respondent if he ever messed around. Respondent replied that because of his past problems he never went out with anyone unless the girl asked him. The next evening, June 11, 1994, Respondent began his shift at 6:00 p.m. He was scheduled to work a twelve hour shift. Early in the evening, Respondent saw Deputy Meeks, a deputy with the sheriff’s office. They agreed to eat supper together at the Subway around 11:00 p.m. As the evening progressed, Respondent answered several calls. Between 8:30 and 9:00 p.m. Respondent responded to a call involving a dog bite. After completing the matter involving the dog bite, Respondent saw Ms. Hallman at or near the Circle K. She told him she wanted to talk to him. They agreed to meet at a small public park known as Delma Lock. The park was near a school and a football field. A baseball game was in progress at a baseball field located between the Circle K and the park. The area of the park in which Respondent and Ms. Hallman met was dimly lit. Even so, Ms. Hallman felt like there were too many people around the park or driving by that might recognize her. Respondent suggested they go to the police station. Respondent parked his patrol car in front of the police station. When Ms. Hallman arrived she parked on the side of the building. They went in the side door and into Respondent’s office. There was no other person present in the building. Ms. Hallman told Respondent that she had been a witness to an automobile accident earlier in the day. Respondent and Ms. Hallman had been in his office just a few minutes when Deputy Meeks knocked on the back door of the police station. Respondent opened the door for Deputy Meeks who was ready to go to the Subway for supper. While Respondent and Deputy Meeks were eating their sandwiches at the Subway, Ms. Hallman came in to get a sandwich for a friend of hers. She carried on a brief conversation with Respondent. Sometime around midnight, Respondent spent a few minutes at the Midtown Jiffy visiting with a friend of his, Joan Schubert. From 12:46 to 12:56 a.m., Respondent checked on the alarm at the Senior Citizens Center. Respondent next saw Ms. Hallman near the Circle K. They agreed to meet back at the Delma Lock park. Once again there were too many people at the park for Ms. Hallman to be comfortable. Respondent suggested they meet at the Department of Transportation building. He told Ms. Hallman how to find the building. Ms. Hallman arrived at the designated building first. Respondent pulled into the driveway and told her to follow him. They drove behind the building and parked. Both of them got out of their cars. The area was well lit, but cars from the highway in front could not see what was going on. Respondent took off his gun belt and dropped his pants. Ms. Hallman dropped her shorts. They had sexual intercourse standing up and leaning against the trunk of Ms. Hallman’s car. After having sex, Respondent heard a radio call for Deputy Meeks to respond to a disturbance at Levy Norris’s house. The call originated around 1:35 a.m. The dispatcher explained that the Norris residence was across the road from the Catholic church and down an unpaved road beside Thompson’s garage. Respondent knew that Deputy Meeks was making the final loop of his patrol before going off duty at 2:00 a.m. Respondent was out of breath when he got to his radio. He called Deputy Meeks on the radio and asked him where he was coming from. Deputy Meeks replied that he was in Rosewood which was at least ten miles away. Respondent said that he was “right here at the church.” Respondent asked Deputy Meeks whether he should wait or go on to the Norris residence. Deputy Meeks told Respondent to go ahead and gave Respondent directions. Respondent left Ms. Hallman in the parking lot of the Department of Transportation building. She did not see him again. Respondent was enroute to the Norris residence by 1:38 a.m. He arrived on the scene at 1:42 a.m. It took him four minutes to get there. The Catholic church was used as a landmark to identify the road on which Levy Norris lived. It is located in the same vicinity as the Department of Transportation building where Respondent met Ms. Hallman. Later in June of 1994, Ms. Hallman went to Chief Nicholson to complain that another of his officers made derogatory comments about her which caused her to lose a prior job. Ms. Hallman said the same officer was attempting to get her fired from her current job by making derogatory remarks about her to her employer. In the course of investigating this complaint, Chief Nicholson learned that Respondent may have had an affair with Ms. Hallman. Chief Nicholson called Ms. Hallman and requested that she come to his office. At that meeting, Ms. Hallman denied that she and Respondent had sex. A day or two later, Ms. Hallman returned to Chief Nicholson’s office. She admitted that she had sex with Respondent. Respondent never included his interaction with Ms. Hallman in his duty log. Respondent gave sworn statements to Chief Nicholson on June 24, 1994 and July 1, 1994. When questioned, Respondent knowingly made false statements to mislead Chief Nicholson about his relationship with Ms. Hallman. Chief Nicholson concluded his internal investigation and decided to terminate Respondent’s employment. Chief Nicholson advised Respondent of his decision in a memorandum dated July 6, 1994 and received by Respondent’s counsel on July 25, 1994. The Chiefland City Commission, sitting as the City Personnel Review Board, conducted a hearing on August 29, 1997. Respondent’s employment with the City of Chiefland was terminated effective September 6, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that Petitioner enter a Final Order revoking Respondent’s law enforcement certification. DONE AND ORDERED this 8th day of April, 1997, in Tallahassee, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, FL 32301-1218 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
