The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner was hired by the Palm Beach Gardens Holiday Inn in 1974. She began work as a cashier and later worked as a hostess in the restaurant. She was promoted to Food and Beverage Manager in 1978. On November 27, 1978, Respondent purchased the Holiday Inn and appointed Mr. John Astarita as its general manager. Astarita made several personnel changes in late 1978 and early 1979, and on March 9, 1979, discharged Respondent. Immediately prior to her discharge, Petitioner had given information to an investigator regarding a sex discrimination complaint of a female employee who had been discharged earlier by Respondent. Astarita questioned Petitioner about her conversation with the investigator the day before he discharged her. She refused to give him the information he sought. Petitioner's evidence of sex discrimination is limited to a rumor she had heard that Astarita did not want women in management positions. This hearsay evidence lacks credibility and is uncorroborated. Respondent's evidence established that Petitioner's job performance was not satisfactory. The ratio of liquor costs to sales had increased above an acceptable level, and she had failed to clean up the bar area after having been instructed to do so by Astarita.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's complaint. DONE AND ENTERED this 20th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Ms. Catherine Scott 12712 Ellison-Wilson Road Juno Isles, Florida 33408 R. E. Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Eugene W. Murphy, Jr., Esquire Murphy, MacLaren & Littell, P.A. 341 Royal Poinciana Plaza Post Office Box 2525 Palm Beach, Florida 33480
The Issue The issue to be resolved in this proceeding concerns whether Jim Vandergrifft, the Respondent, as mayor of the City of New Smyrna Beach, voted on a matter which inured to his special private gain in violation of Section 112.3143(3), Florida Statutes, by voting to postpone a vote on Proposed City Ordinance 43-05. If enacted, the ordinance would have established an "historic architecture overlay district" by amendment to local land use regulations.
Findings Of Fact Jim Vandergrifft was the Mayor of New Smyrna Beach at times pertinent to this case. He had been mayor from 1995 through 2007, and prior to that time served as a city commissioner from 1988 to 1995. He is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. A proposed city ordinance came before the New Smyrna Beach City Commission for a vote, as proposed ordinance number 43-05. The vote was to be taken on February 14, 2006. The Respondent voted to postpone enactment of the ordinance which was designed to amend local land development regulations by establishing an historic architectural overlay district. It applied to a certain described territory within the City of New Smyrna Beach. The purpose of the ordinance was to ensure that new construction and renovations of current structures within that historic overlay district would adhere to strict building guidelines intended to maintain the historic character of the area, by following historic design standards of the City of New Smyrna Beach. The guidelines concerning building and remodeling structures in the historic district of New Smyrna Beach were voluntary prior to the proposal of ordinance 43-05. The ordinance was never enacted, however, so the guidelines for building and remodeling in the subject territory in the City of New Smyrna Beach remained voluntary. At the time of the vote on February 14, 2006, the Respondent had a pending contract for the purchase of property located at 115 Washington Street, New Smyrna Beach, Florida. The property was located in the area to be affected by the above-referenced proposed ordinance. At the time of the vote on February 14, 2006, the property was under contract and was not actually in the title ownership of the Respondent. He closed his purchase of the property and completed it on February 15, 2006. At the time of the purchase a dilapidated 15-room hotel was located on the property. The hotel was in very bad condition. The roof was in the process of collapse and it was dangerous to walk on the second floor for risk of falling through. The wiring was antiquated and in poor condition, and the building had no central heating system. At the time of the vote on February 14, 2006, the Respondent owned his personal residence, also located in the area affected by the ordinance. Because his residence was new it would not have affected by the subject architectural standards ordinance. Mr. Vandergrifft disclosed that he lived in his residence and owned other property in the district, encompassed by ordinance 43-05, at the city commission meeting of February 14, 2006. The Respondent did not abstain from voting on that date, but publicly disclosed that he lived downtown and owned other properties in the affected area. The Respondent had sought advice from the city attorney prior to the vote on February 14, 2006, concerning whether he would have a voting conflict if he voted on the ordinance. He told the city attorney that he lived in and had other property in the district to which the ordinance would apply if enacted. He did not actually inform the city attorney of his impending purchase of the property located at 115 Washington Street (the hotel site). The city attorney advised him that as an elected official he had an obligation to vote on the ordinance. According to the city attorney's testimony the Respondent indicated that he lived downtown and had other property in the area of the ordinance's applicability and inquired whether he could vote on the ordinance. Based on his understanding of the district covered by the ordinance, the city attorney advised Mr. Vandergrifft that he could vote on the matter. The city attorney reasoned that under existing law, Mr. Vandergrifft's ownership interest was less than one percent of the properties being affected by the vote, therefore Mr. Vandergrifft could vote on the ordinance. According to the city attorney's testimony: ". . . practically every land use vote that a member of the governing body makes could affect that person's property one way or the other. But, they're . . . required to live in the city to qualify for office . . . so obviously their votes affect their property. The question is whether it is a special private gain." The proposed ordinance 43-05 would have affected 522 parcels of property within its territorial area. If the Respondent had an ownership interest in two properties, his residence and the property at 115 Washington Street (the hotel) his interest would only constitute .37 percent of the total parcels affected by the ordinance, obviously less than one percent of the total parcels affected. In fact, as of the date the postponement vote on the ordinance was taken, he did not actually own the hotel property. It was under contract to be sold to the Respondent but the closing and final performance of the contract did not occur until the day after the city commission meeting at which the postponement was voted. In any event, Mr. Vandergrifft's ownership in the territorial area of the proposed ordinance amounted to less than one percent, at most, of the total affected parcels. Therefore, in the opinion of the city attorney a voting conflict did not exist. Although the Respondent did not inform the city attorney of the impending purchase of that specific piece of property, he did inform him that he owned his residence and "other property" in the area affected by the proposed ordinance. The city attorney would not have changed his legal advice as to whether the Respondent could vote on the ordinance if he had known of the specific impending purchase of the property at 115 Washington Street. The Respondent purchased the property at 115 Washington Street with the intention of renovating it. After having architects examine it, however, including a renovation architect, and having it inspected by members of the city staff, it was determined by all concerned, including the city building inspector, that the property should be demolished. It was deemed beyond repair and a liability. The renovation architect believed that there was no feasible way to renovate the building and so the Respondent requested approval to demolish the structure. Ultimately approval was granted by the city and the old hotel structure has now been demolished, as of October 2007, approximately one and one-half years after the property was purchased by the Respondent. The demolition of the hotel building was accomplished in accordance with the "Historic Building Demolition Ordinance." Pursuant to that ordinance the hotel was a "contributing structure" in the National Register Historic District. If the subject proposed ordinance had been enacted, demolition of the hotel building would have still have been possible. There were no differences in the actual approval process of the Historic Preservation Commission with respect to the proposed demolition either with or without enactment of the proposed ordinance at issue. Several conditions were attached to approval of the demolition of the hotel building, as allowed for by the "Historic Building Demolition Ordinance." The Respondent agreed to these conditions, one of which was that a site plan for reconstruction be completed and approved, based upon historic overlays. The procedures voluntarily followed by the Respondent in demolition of the hotel, and obtaining the site plan approval by the Historic Preservation Board and the City Building Department, although pursuant to non-mandatory guidelines, were essentially the same as they would have been if the mandatory standards of the proposed ordinance had been enacted. A Real Estate Broker, Mr. Floyd Fulford, established that, based on Multiple Listing Service Reports, four properties in the district covered by the proposed ordinance, were sold during February of 2006. However, property sold by owners without the use of a realtor are typically not shown in the multiple listing service, a service to which realtors have access. According to the Volusia County Property Appraiser's data base, as described by Mr. Fulford, 166 properties were sold in the entire 32168 zip code area, which is the mainland side of the City of New Smyrna Beach. There may have been other sales in February 2006 occurring in the beachside area of New Smyrna Beach. Mr. Fulford was not aware of whether or not these properties were located in the Historic Overlay District at issue.
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 the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Ethics finding that the Respondent, Jim Vandergrifft, did not violate Section 112.3143(3)(a), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, in Tallahassee, Leon County, Florida. S 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 17th day of November, 2008. COPIES FURNISHED: Kay Starling, Agency Clerk Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, Executive Director Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Jennifer M. Erlinger, Esquire James H. Peterson, III, Esquire Advocate for the Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317
Findings Of Fact At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043. On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time. The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine. Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence. The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine. The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself. Officer Goodwin was Respondent's fellow officer with the Miami Beach P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together. Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid. Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there. When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence. When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags. Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job. On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D. Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend. Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done. Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair. Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner. Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years. In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation. Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay. At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement. Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident. In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions. In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D. Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D. However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner. At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent. Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around. By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent. Petitioner filed the administrative complaint against Respondent on August 9, 1993. Respondent has no prior disciplinary action against him by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Placing Respondent on probation for one (1) year under terms and conditions that the Commission deems appropriate. DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300 Miami, Florida 33133-2749 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Glen Thurlow (Thurlow), was certified by the Criminal Justice Standards and Training Commission (Commission) on June 15, 1982, and was issued Certificate Number 02-3128. Thurlow has been employed by the West Palm Beach Police Department (WPBPD) for the last eight years. On the evening of November 24, 1990, Thurlow was assigned as a police officer to the WPBPD Criminal Apprehension Team (CAT), which is a street crimes unit. That evening Thurlow was partnered for the first time with Lee Rollins (Rollins), a fellow police officer on CAT. Thurlow and Rollins were assigned as plain clothes officers in an unmarked police vehicle, an old, gold Cadillac. Thurlow had on a black T-shirt, combat pants, black combat boots, duty leather and underneath his shirt a bullet-proof vest with a trauma plate. Rollins was dressed in a black T-shirt and jeans. He was not wearing duty leather, but was wearing a utility belt fastened with velcro. Both officers wore their police badges on a chain underneath their shirts. Around 10:30 p.m., near the end of their duty shift, they were returning to the police station. Thurlow was driving south on South Dixie Highway headed toward the Belvedere Road intersection. As they approached the intersection, the officers saw a man, later identified as Robert Jewett (Jewett), dressed in cut-off jeans, a T-shirt, and a cap standing near the middle of the south bound lanes on South Dixie Highway past the Belvedere Road intersection, near the Palm Beach Post Building. The officers continued through the Belvedere Road intersection toward Jewett. As they approached Jewett, he stuck out his left hand in a "hitchhiking gesture." Thurlow pulled over to the side of the road near the parking lot of the Palm Beach Post Building. When Thurlow pulled over, Jewett ran up to the car and got in the back seat. Rollins showed Jewett his police badge, told Jewett that he was a police officer, and requested Jewett to step outside the car. Jewett complied. Rollins exited the Cadillac and Thurlow remained inside. Rollins asked Jewett for his driver's license, which Jewett gave him. Rollins radioed the police dispatcher with the information on the driver's license in order to determine whether there were any outstanding warrants on Jewett. Rollins advised Jewett that he was going to charge him with hitchhiking, but that if there were no warrants against Jewett that he would be given a Notice to Appear and released at the scene, rather than being taken down to the police station. Rollins told Jewett to place his hands on top of the car and spread his legs so that Rollins could search him for weapons. Jewett complied. Thurlow, still sitting in the driver's seat, was monitoring the conversation between Rollins and Jewett. Rollins began the weapons search at Jewett's shoulder and continued down to his left pocket. Finding nothing, he started to search the right pocket. At that time Jewett brought his right arm down from the top of the car. Rollins caught his arm, put it back on top of the car, and told him to keep his hands on the top of the car. As Rollins proceeded to search Jewett's right pocket, Jewett brought his right arm down and stuck it in his pocket. At the same time he came around with his left elbow and hit Rollins on the left side of his chest, knocking him around. Rollins pulled Jewett's hand out of his pocket and they began to struggle. Rollins pulled his flashlight from his back pocket and tried to hit Jewett on his left forearm. Jewett tried to kick Rollins in the groin and Rollins grabbed Jewett's T-shirt. Their feet tangled, the men went down and Rollins fell back toward the car, hitting his head on the back door. Rollins was stunned from the blow to his head. Thurlow felt the Cadillac rock as if someone had bumped against the car. Rollins called to Thurlow to give him some assistance. Thurlow exited the car and came around to the passenger side, where he saw Rollins sitting on the ground with his back to the car, and Jewett straddling and leaning over Rollins with his arms raised as if he were preparing to hit Rollins. Thurlow ran up behind Jewett and put his arm below Jewett's Adam's apple in Jewett's upper chest area in order to pull Jewett back from Rollins. Jewett began to fight and had Thurlow on the balls of his feet. They went towards the front of the car. Jewett went down on his knees with Thurlow's arm still around him. Jewett stood up with Thurlow on his back and they both went backwards, and as a result Thurlow's arm slipped up towards Jewett's chin. Rollins, seeing Jewett put his right hand in his pocket, ran over to Jewett and tried to grab his right hand. The three men fell to the ground and rolled backwards landing in a grassy area. Thurlow still had his arm around Jewett's neck. Thurlow was on the bottom, Jewett in the middle and Rollins on top. Thurlow released his hold on Jewett and slipped out from under Jewett. Thurlow was on Jewett's left side and Rollins was sitting to Jewett's right, about, waist-high facing away from Jewett. Jewett was grabbing at his right pocket. Rollins saw a metal object in the area of Jewett's right pocket. Rollins took his flashlight and swiped at the metal object, sending both the flashlight and the metal object flying off in an easterly direction. Rollins told Jewett to quit struggling. Jewett grabbed the butt of Rollins' gun. Rollins hollered to Thurlow that Jewett had his gun. Rollins hit Jewett in the groin three to four times. Thurlow got up and threw a punch at Jewett connecting at Jewett's left eye. At that point Jewett quit fighting. Thurlow held Jewett's arm over the curb and told Rollins to handcuff Jewett. Having lost his handcuffs in the struggle, Rollins used Thurlow's handcuffs and cuffed Jewett's hands behind his back. All three men were breathing hard and sweating. Rollins told Thurlow that he had lost his flashlight and that something had been thrown out of Jewett's hand during the struggle. Thurlow left Rollins with Jewett and went to look for the lost items. At the time Thurlow left Rollins and Jewett, Jewett was breathing. During the struggle, Rollins' handcuffs, radio, and ammo pouch came off his belt. Rollins found his radio and called the dispatcher at 22:35:52 hours to report the incident. He then went to look for the rest of his missing equipment and was gone approximately one to one and a half minutes. Rollins returned to Jewett and started to pick him up; however Jewett was limp. Rollins put him back on the ground and tried to take his pulse. Because Rollins was still in an excited state from the fight, he could not tell whether he was getting a pulse from Jewett. He tried to take Jewett's pulse again but still could not determine whether he was getting a pulse. Thurlow, having found the flashlight in the grass and an open pocketknife on the sidewalk, walked back over to Rollins and Jewett. Thurlow asked Rollins if something was wrong with Jewett, and Rollins replied that Jewett did not look well. At 22:39:54 hours Thurlow radioed for the paramedics. At 22:43:35 hours, Thurlow again radioed for the paramedics to hurry and get to the scene. Rollins again checked for a pulse but could not determine whether there was a pulse. A few minutes later firefighters, responding to a medical call, arrived on the scene. One of the firefighters checked Jewett's pulse and breathing and determined that Jewett was not breathing and did not have a pulse. Jewett was pale with some discoloration and swelling about the face. Within several seconds, the rescue team arrived. The rescue team got Jewett uncuffed and began to administer advanced life support. Jewett was transported to a hospital where he was pronounced dead. Both Thurlow and Rollins were trained to administer CPR; however the unmarked police vehicle did not contain rubber gloves or a bag which are used in administering CPR to protect the person administering CPR from diseases such as AIDS which could be transmitted by bodily fluids. Additionally, Jewett appeared to be breathing, which would mean that he was not a candidate for CPR. At the time of the incident, Joseph Huffman and his girlfriend were traveling north on South Dixie Highway in a van. The van had windows on the rear doors and on the passenger and driver doors. As Mr. Huffman approached the Palm Beach Post parking lot, he saw two men scuffling on the hood of the gold Cadillac. He began to slow down to watch the fracas. He observed the fight for approximately 20 to 30 seconds, during which time he looked over to the El Cid Bar to see if anyone was watching. His girlfriend observed that Huffman tried to look at the fight through his side mirror but couldn't see so he stuck his head out the driver's window and glanced back once or twice, looking forward to check the approaching traffic. Huffman recalled seeing a third man strike Jewett at least 20 times in the groin with a flashlight; however the medical evidence does not support Mr. Huffman's assertion. Having judged the credibility of the witness, I find that Mr. Huffman's recollection is not credible. An autopsy was performed on Jewett by the Palm Beach County Medical Examiner, Dr. James Benz. The autopsy revealed that Jewett had a black eye, markings on the forehead and neck area, minor bruises and abrasions on the right forearm, abrasions on the knees, and abrasions on the right wrist. Jewett suffered fractured ribs and bruising of the left lung underlying the rib fractures. There was a "blow out" of the heart. There was hemorrhaging underneath the Adam's apple and an irregular fracture in the lamana below the Adam's apple. The hyoid bone, which sits above the voice box, was fractured. There were no injuries to the upper thighs, penis or lower abdomen. There was a mild bruise in the testicle area and hemorrhaging in the left testicle. The injuries to the testicles are not consistent with Jewett's being hit between 10 to 20 times with a flashlight in the groin. The "blow out" of Jewett's heart is called a cardiac tamponade. Most probably as a result of the impact to Jewett's chest when he, Rollins, and Thurlow fell to the ground, a thin area of Jewett's heart blew out forming a small hole in Jewett's heart. The heart pumped blood through the small hole into the pericardial sac. As a result of the blood flowing into the pericardial sac, the heart could not expand and death occurred. The cardiac tamponade did not occur after Jewett died nor did it occur in a peri-mortem, near-death state. The cardiac tamponade did occur while Jewett was alive and death occurred some time later. Based on the testimony of Dr. Charles Petty, an expert in forensic pathology, I find that the injuries to Jewett's neck occurred as a result of forceful application of force to the neck, which is consistent with a fall across a rounded object such as a forearm rather than police carotid holds and choke downs. The Use of Force Matrix from the Florida Department of Law Enforcement is the state standard concerning the use of force by law enforcement officers. The matrix lists the resistance levels of a subject and indicates the appropriate level of force to be used by an officer in responding to the various levels of resistance. An aggressive physical resistance is defined as overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. Aggravated physical resistance is when the subject makes overt, hostile, attacking movements with or without a weapon, with the intent and apparent ability to cause death or great bodily harm to the officer or others. The resistance level of Jewett when he was straddled and leaning over Rollins as Rollins was up against the fender of the Cadillac and Jewett's actions at the front of the car with Thurlow constitutes aggressive physical resistance. The matrix guidelines indicate that an officer may use all levels of force with the exception of deadly force in dealing with aggressive physical resistance. When Thurlow grabbed Jewett from behind to remove Jewett from his position of standing over Rollins, Thurlow was not using deadly force. His arm was not under Jewett's chin but was lower, nearer the upper chest area. The resistance level of Jewett when he was trying to get Rollins' gun constitutes aggravated physical resistance. The matrix guidelines for force to counter aggravated physical resistance include among other things, counter moves, incapacitation, and deadly force. Deadly force includes techniques that may result in imminent or serious injury, unconsciousness or permanent disfigurement, such as impact weapon strikes to the head or use of firearms. Thus, Thurlow's punch to Jewett's face was within the matrix guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against Respondent, Glen H. Thurlow. DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2593 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance with the exception of the word "allegedly" which is rejected. The second sentence is accepted in substance. Paragraphs 10-12: Accepted in substance. Paragraph 13: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 14: Accepted in substance. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance; however it should be noted that it appeared to Thurlow that Jewett was about to strike Rollins. Paragraph 17: The first and second sentences are rejected as not supported by the greater weight of the evidence. The evidence established that Thurlow jumped across Jewett's back, placing his arm across Jewett below Jewett's Adam's apple. The second sentence is accepted in substance. Paragraph 18: Accepted that Thurlow and Jewett continued to struggle. Rejected that Thurlow continued to maintain a choke hold on Jewett. The greater weight of the evidence established that Thurlow's arm did not slip up under Jewett's chin until Jewett and Thurlow began to fall backward. Paragraph 19: Rejected as not supported by the greater weight of the evidence. Paragraph 20: Accepted in substance with the exception of "continued to hold Mr. Jewett in a choke hold." The evidence established that Thurlow's did not have a choke hold on Jewett until they fell backwards and that the choke hold was not an intentional action but rather resulted from the struggle between Jewett and Thurlow and Rollins running into them. Paragraph 21-22: Accepted in substance. Paragraphs 23: Accepted in substance except to the extent that such finding implies that Thurlow had a choke hold on Jewett at the time that Huffman saw them. Paragraphs 24-26: Having judged the credibility of the witnesses, I find that Huffman's testimony concerning the repeated striking of Jewett in his groin not to be credible, particularly considering the medical evidence and the fact that Huffman was driving down the street while he was trying to look at the fight and keep track of traffic both in front of and behind him. Paragraph 27: Rejected as not supported by the greater weight of the evidence. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as not supported by the greater weight of the evidence. Paragraph 30: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett the entire time that they were struggling. The evidence established that Thurlow did not start out with a choke hold but that during the struggle, Thurlow's arm slipped underneath Jewett's chin. Paragraphs 31-35: Accepted in substance. Paragraph 36: Accepted in substance to the extent that at one point in time while Jewett was supine on the ground his head was turned toward Thurlow and he grabbed Thurlow's shirt but rejected to the extent that it implies that during the entire time Jewett was on the ground he was looking at Thurlow and grabbing Thurlow's shirt. Paragraph 37: Accepted in substance. Paragraph 38: Accepted in substance to the extent that Thurlow did hear Rollins shout that Jewett had grabbed his gun and to the extent that Thurlow did not see Jewett actually grab the gun. Rejected to the extent that the word "claiming" implies that Rollins may not have shouted to Thurlow that Jewett had his gun and rejected to the extent that the last part of the sentence could be construed to mean that Thurlow did not see Jewett's right arm reach in the direction of Rollins' holster. Paragraphs 39-40: Accepted in substance. Paragraph 41: Accepted in substance with the exception of the word "allegedly." Paragraphs 42-45: Accepted in substance. Paragraph 46: The portion relating to rendering medical assistance is accepted in substance. The portion relating to never checking on the well being of Jewett is rejected as not supported by the evidence. Thurlow did inquire of Rollins concerning the condition of Thurlow before he called for the paramedics. Paragraph 47: Accepted in substance. Paragraph 48: Accepted in substance to the extent that Rollins did not render any first aid but rejected to the extent that Thurlow always had an unobscured view of Jewett. The evidence established that Thurlow was looking for the knife and the flashlight during a portion of the time . Paragraph 49: Rejected as constituting a conclusion of law. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-53: Accepted in substance. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: Rejected as not supported by the greater weight of the evidence. Paragraph 56: Accepted in substance. Paragraphs 57-59: Rejected as subordinate to the facts actually found. Paragraphs 60-73: Rejected as unnecessary. Paragraph 74: Accepted in substance to the extent that Jewett was lying on the ground, was bloody, and was not moving. In light of the testimony of Mr. Cook that Jewett's skin was pale and there was discoloration about his face, I do not find Mr. Bouchillion's testimony that Jewett was turning blue to be credible. Paragraph 75: Accepted in substance. Paragraphs 76-77: Rejected as subordinate to the facts actually found. Paragraphs 78-86: Accepted in substance. Paragraphs 87: Rejected as not supported by the greater weight of the evidence. Paragraph 88: Accepted in substance. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-96: Accepted in substance. Paragraph 97: Having considered the opinions of Dr. Benz and Dr. Petty, I reject the finding to the extent that it implies that the fractures resulted from a choke hold applied prior to Thurlow, Jewett, and Rollin falling down and rolling into the grassy area. Paragraph 98: The first sentence is accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. Paragraph 99: Accepted in substance. Paragraph 100: Rejected as not supported by the greater weight of the evidence. Paragraphs 101: Rejected as subordinate to the facts actually found. Paragraph 102: Rejected as subordinate to the facts actually found. Paragraph 103: Rejected as unnecessary. Paragraph 104: Accepted in substance. Paragraphs 105-109: Rejected as subordinate to the facts actually found. Paragraph 110-111: Accepted in substance. Paragraph 112: Rejected as subordinate to the facts actually found. Paragraph 113: Accepted in substance. Paragraph 114: Rejected as subordinate to the facts actually found. Paragraph 115: Rejected as unnecessary. Paragraphs 116-117: Rejected as subordinate to the facts actually found. Paragraph 118: Rejected as not supported by competent substantial evidence. Paragraph 119: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett from the time there were at the rear of the Cadillac until they fell backwards. The evidence established that Thurlow did not have Jewett in a choke hold when Thurlow grabbed Jewett from behind. Paragraph 120: Rejected as constituting argument. Paragraph 121-125: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 2-3: Rejected as subordinate to the facts actually found. Paragraph 4: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance. The portion of the second sentence relating to Thurlow being able to hear is accepted but the portion that Thurlow could see everything is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance to the extent that Thurlow thought that he needed to monitor the traffic but the greater weight of the evidence established that the Cadillac was not in the lane of traffic while it was parked. Paragraphs 10-27: Accepted in substance. Paragraph 28-30: Rejected as unnecessary. Paragraph 31: Accepted in substance. Paragraph 32: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Gene "Hal" Johnson, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400 250 Australian Avenue, South West Palm Beach, Florida 33401-5012 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
