The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 11th day of May, 2011.
Findings Of Fact J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977. COPIES FURNISHED: Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 J. W. Joines 690 Nelson Drive Orange Park, Florida 32073 Ms. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
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 was certified by the Criminal Justice Standards and Training Commission on March 21, 1988, as a law enforcement officer, Certification Number 50-87-002-01, and at all time relevant, certification was active. In March of 1988, the Respondent became employed as a police officer with the Winter Haven Police Department. On two separate occasions in 1990, Lois May engaged in sexual intercourse with Officer Edgar S. Searcy. On both occasions, Officer Searcy paid May $10.00 for her services. Officer Searcy was on duty and in uniform during both of these occurrences. Colleen McCoy performed oral sex on Officer Searcy in exchange for $5.00 on one occasion in 1990. While on duty, Respondent picked up McCoy at her residence, and took her to a secluded location where she performed oral sex on him. He paid her $5.00, and drove her to a location where she could walk to nearby "crack house" and obtain drugs.
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. DONE AND ENTERED this 6th day of January, 1994, 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 6th day of January, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,9 Rejected as hearsay: paragraphs 6,7,8 Respondent's proposed findings of fact. Accepted in substance: none Rejected as argument or comments on the evidence: paragraphs 1, 2, 3,4 COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Steve Brady Regional Legal Advisor Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Doris Hundley Qualified Representative Edgar S. Searcy 490 East Plum Avenue Chipley, Florida 32428
Findings Of Fact Respondent is a certified law enforcement officer, holding certificate number 08-90-002-02, which was issued December 7, 1990. Respondent was born June 12, 1966. He was raised in the Harlem area of Clewiston. Everyone knows each other in the Harlem area, which contains a predominantly black population of 3000-4000 persons. Since he was six years old, Respondent's best friend was John Gowdy. They are the same age and grew up in the same neighborhood. Together, they went to school, worked, and played sports. Respondent was a well-known football player when younger. Respondent and John entered the military at about the same time. Once he finished high school, Respondent realized that there was not enough money for him and his sisters to go to college, so he joined the Air Force. He served for nearly six years without any problems and received an honorable discharge. He immediately entered the Florida Highway Patrol academy. In the meantime, John Gowdy had entered the banking profession and moved to the Miami area. Respondent successfully completed the academy on December 7, 1990. He was immediately assigned to the Florida Highway Patrol post in Ft. Myers and began the required one-year probationary period. On August 14, 1991, about eight months after joining the Florida Highway Patrol, Respondent's sister told him that their mother was ill with heart trouble. Respondent had been working evenings, so, after work, he drove from Ft. Myers to Clewiston, arriving at his mother's house in the morning. After taking her to the doctor's office and getting her medicine, Respondent was at home with her when Shelton Gowdy drove up and asked if he could service the transmission on Respondent's car. Shelton was John's younger brother. Shelton has twice served time in prison. Though they were not friends, Respondent allowed Shelton to earn some money by working on Respondent's car whenever he was in Clewiston visiting his mother or the mother and family of Shelton and John Gowdy. Respondent told Shelton he could take Respondent's car and service the transmission. Shelton drove the car to his mother's house to work on the car. Later in the day, Respondent went to the home of Shelton's mother and checked on his car. Shelton said that he needed a light bulb to fix a parking light, so Respondent allowed Shelton to drive the car downtown to get the bulb. In the meantime, Respondent talked to Shelton's mother and sister, with whom Respondent has remained close over the years. Respondent watched television with them and was not particularly concerned that Shelton was gone several hours with the car. While driving Respondent's car, Shelton picked up Norman Banks and, while cruising, noticed a white couple driving a pickup truck in the Harlem area, near the home of Respondent's mother. Respondent, Shelton, and Mr. Banks are black. The white couple were undercover deputies of the Hendry and Collier County Sheriff Departments. The pickup truck and Respondent's car pulled over to the side of the road, side by side. Respondent's car was mostly still in the road. The two vehicles were about three or four feet apart. The driver of the truck remained in his seat, which was considerable higher than the seats of the passenger car. The driver of the truck was closest to the car's front passenger window. Shelton got out of the driver's side of the car, walked behind the car, and approached the driver of the truck. Quickly, they negotiated the sale of crack cocaine from Shelton to the undercover deputy. Just as quickly, the transaction ended and the deputy drove away. The deputy driving the truck later identified Respondent as the passenger in the car driven by Shelton. The deputy on the passenger side of the truck could not see Shelton's passenger. The lighting was poor. The deputy driving the truck could not closely scrutinize the passenger because he had to remain alert to possible trouble from the approaching driver, as well as possible unseen assailants elsewhere in the vicinity. The deputy who identified Respondent did not seem credible as a witness. He seemed ill at ease and nervous while testifying. He originally identified Respondent in a photo lineup. When shown a photocopy of the same photo lineup during his deposition, the deputy declined to identify Respondent, though he claimed that the quality of the photocopy did not prevent him from identifying Respondent. Even after being assured by Respondent's counsel that Respondent would not hold the deputy liable for a misidentification, the deputy continued to refuse to make the identification and insist on the original photographs, despite claiming that he recognized the passenger from the photocopies of the photographs. Although the deputy who identified Respondent denies seeing a baseball cap on the passenger, someone besides Respondent mentioned a cap to the Florida Highway Patrol internal investigator who later conducted the internal investigation. He recalls that someone said that the passenger wore a baseball cap, possibly turned around backwards. Mr. Banks typically wears a baseball cap backwards. The internal investigator reports reliably that Respondent was very nervous during an interview. However, Respondent was still on probation and aware that he was under investigation for some offense, but he was unsure of the nature of the offense. The internal investigator reports less reliably that Respondent was evasive during the interview. In fact, Respondent's inability to recall what he was doing on August 14 was because he had not been previously told of the specific allegations, including the date of the alleged offense. The important facts of the case are that the passenger in the car with Shelton was very dark skinned. Respondent is very dark skinned. The identification by the white deputy, in poor lighting, is further undermined by the different heights of the vehicles, the brevity of the transaction, and the urgency of remaining alert to possible dangers from any direction. The identification by the deputy is also undermined by his refusal to identify Respondent in a photocopy of the photo lineup, despite saying that he could do so. The uneasiness of the deputy during testimony could be due to any of a number of factors, such as growing concern over the accuracy of the identification. Respondent's testimony was straightforward and honest. His alibi witnesses were obviously biased in his favor and may have supplied facts that they never knew or no longer recall. For instance, they both testified that Shelton returned before 9:00 pm when the transaction likely did not take place until shortly after 10:00 pm. Petitioner's case is not aided by the general circumstances. Respondent does not appear to have gotten into much trouble during his life, including for nearly six years under close supervision in the Air Force. To the contrary, by all indications, he appears to have been an honest, hard-working, and purposeful young man. Yet, Petitioner suggests that Respondent, having recently become a Florida Highway Patrolman, would sit as a passenger in his own car, allowing a twice-convicted person to drive in search of a drug deal. Moreover, Petitioner suggests that Respondent, with his side window open, would accompany Shelton on his criminal errand in the neighborhood where Respondent's mother lives and where Respondent is known to most of the residents. Petitioner never deals with the incongruity of this proposed behavior by a person of Respondent's apparent character. A person so stupid or disturbed as to attempt what Petitioner suggests almost surely would have stumbled much earlier in life.
Recommendation It is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent. ENTERED on April 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 21, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-5: rejected as subordinate. 6-7 (except last sentence): adopted or adopted in substance. (last sentence): rejected as irrelevant as this fact was not known to Respondent. (except last sentence): rejected as recitation of evidence. 8 (last sentence)-12: adopted or adopted in substance. 13: rejected as subordinate. 14 (first sentence and first clause of second sentence): adopted or adopted in substance. 14 (remainder)-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony. 17: adopted or adopted in substance. 18-23: rejected as subordinate. 24: adopted or adopted in substance. 25: rejected as subordinate. 26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as subordinate and recitation of testimony. 28: adopted or adopted in substance. 29-34: rejected as recitation of evidence. 35-36: rejected as subordinate. 37: adopted except to the extent that she and Respondent were together during the time of the drug deal watching television. 38 (first sentence): adopted or adopted in substance. 38 (remainder): rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony. 39: rejected as recitation of evidence. 40: rejected as subordinate. 41-43: adopted or adopted in substance except that the evidence is that he was nervous but not evasive. The information received indirectly from Officer Gary was enough only to alert Respondent that he was in some sort of trouble, not enough to alert him to the specifics of the allegations so that he could have been prepared to rebut the charges. By this time, Respondent probably knew that Shelton had used Respondent's car for a drug transaction and thought that Respondent would be in trouble for that. 44-55: rejected as recitation of evidence and subordinate. 56: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 57-58: rejected as irrelevant. 59: rejected as unsupported by the appropriate weight of the evidence and subordinate. Rulings on Respondent's Proposed Findings 1-9: adopted or adopted in substance. 10-11: rejected as subordinate and recitation of testimony. 12-15: adopted or adopted in substance. 16-17: rejected as subordinate. 18-19: rejected as recitation of evidence and subordinate. 20-22: adopted or adopted in substance. COPIES FURNISHED: A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Nancy C. Waller Regional Legal Advisor Florida Department of Law Enforcement 4211 North Lois Ave. Tampa, FL 33614-7774 Douglas L. Wilson The Wilson Law Firm 680 Sanctuary Rd. Naples, FL 33964-4837
The Issue Whether Appellant on February 6 and 7, 1977, violated Department of Highway Safety & Motor Vehicles Personnel Rules and Regulations 2.1C and Florida Highway Patrol General Order 19, paragraph 11, as specifically alleged in the disciplinary letter of March 14, 1977. Whether the Appellee's suspension of Appellant should be sustained.
Findings Of Fact Appellant Jerry Shores is employed by the Appellee Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Troop B, Orange County, Florida, with the rank of Trooper. He was so employed on December 26, 1976, and on February 6 and 7, 1977. A letter dated March 14, 1977, sent by Certified Mail with Return Receipt Requested was mailed to Appellant Shores notifying him that he was being suspended for sixteen (16) hours without pay based on the violation which is the subject of this hearing. The letter was signed by J.E. Beach, Colonel, Director, Florida Highway Patrol and was approved by Ralph Davis, Executive Director of the Department of Highway Safety and Motor Vehicles. The Appellant Shores appealed this suspension. 3 Documentary evidence and testimony of the witnesses for the Appellee established that on February 6, 1977, during his regular patrol duty hours, Trooper Shores stopped at a "Seven-Eleven" store at 8:30 a.m. without checking in and out of his station by radio then proceeded to his home at 8:40 a.m. where he stopped and went inside without checking out, then left his home at 9:00 a.m. without checking back in by radio, and at 9:30 a.m. stopped at a plant nursery without checking out by radio. At 9:50 a.m. Trooper Shores, while at the nursery, received a call to investigate and assist a disabled vehicle. Trooper Shores did not leave the nursery to attend to the disabled vehicle and while still at the nursery the Patrol Station called him at 10:15 a.m. advising him to work an accident. Trooper Shores then radioed that the reason that he did not get to the disabled vehicle was that he was busy with another disabled vehicle. On Tuesday, February 8, 1977, the Patrol Station called Trooper Shores on the radio during his regular patrol duty hours at 3:50 p.m. The station did not make radio contact although several attempts were made until 4:20 p.m. when Trooper Shores advised he was out of the patrol car. On December 26, 1976, Trooper Shores received a written reprimand from Sergeant J. C. Rique because he was out of his patrol car at the Hilton Inn on West State Road 50 without either checking out by radio or by telephone. Trooper Shores had depended upon another person to check him out.
Recommendation Sustain the penalty of sixteen (16) hours without pay. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of June, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Jerry Shores Route 2, Box 526-C Apopka, Florida 32702
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com
The Issue The issue presented for decision is whether or not Respondent failed to maintain the qualifications of a law enforcement officer and, if so, what penalty would be appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings. Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on December 6, 1974, and was issued Certificate Number 02-12297. From at least June 1982 through August 29, 1986, Respondent was employed as a trooper with the Florida Highway Patrol. During late 1984, Respondent's performance came under scrutiny by Lt. Dun, who was Respondent's supervisor. Lt. Dunn performed an evaluation of Respondent's performance as a trooper on December 28, 1984. Lt. Dunn used a standard appraisal form which uses a numerical evaluation with a range of 1 through 40. The highest score denotes the highest level of performance. A rating of 18 or under denotes a conditional evaluation. On Respondent's 1984 evaluation by Lt. Dunn, he earned a performance rating of 19. Based on his marginal performance, he was given a special evaluation which noted, inter alia, that he had feigned sickness and thereby had misused sick time, by using 81 hours of sick leave while he appeared to be in good health and was late turning in his weekly reports of daily activities, and specifically that Respondent used 81 hours of sick time while he appeared to be in good health. Lt. Dunn gave Petitioner a special evaluation for the third time within 60 days of his 1984 annual evaluation and at that time Respondent received a numerical rating of 17. That rating is indicative of less than satisfactory performance. At that time, Respondent had not improved in the areas found deficient during the time period when he received his 1984 annual performance evaluation and the two succeeding special evaluations. (Petitioner's Exhibit 1) Sgt. David Johnson, the squad supervisor assigned to the Miami office since approximately November 1984, worked with Respondent and directly supervised him during January 1986. On January 9, 1986, Sgt. Johnson and Respondent worked the same shift. Respondent's car had been moved from a shopping mall where he left it unattended for several hours. The car was ordered moved by supervisory officers in the Miami office. Respondent lived near Sgt. Johnson and phoned him to get a ride to work since his car had been moved when he left it unattended at the shopping mall. Sgt. Johnson was aware that Respondent's car had been towed before he called him seeking a ride to work. While in route to work that morning, Respondent told Sgt. Johnson that he needed professional counseling and admitted that he was addicted to drugs and alcohol. Respondent was referred to the highest officer in authority at the Miami station, Cpt. Jack Hardin, for counseling. At approximately 2:45 p.m. on the afternoon of January 6, 1986, Respondent was interviewed by Cpt. Hardin. Respondent told Cpt. Hard in that he needed professional help due to his addiction to drugs and alcohol. Respondent advised Cpt. Hardin that this problem had persisted during the previous six years and that he wanted to save his job. Based on that admission, Cpt. Hardin reassigned Respondent to administrative duties. He also advised Respondent that it was necessary for him to notify Major Grayson, Unit Commander, inasmuch as use of a controlled substance, to wit, cocaine, was a felony. Based on Respondent's admission to use of a controlled substance and the other problems associated with drug addiction, Cpt. Hardin took possession of Respondent's firearm. Since April 1, 1982, Cpt. M. Leggett has been the commander of the subdistrict in Miami known as Troop "E." Respondent was assigned to Troop "E" during all times material to this case. On June 9, 1986, Cpt. Leggett summoned Respondent to his office for a disciplinary interview. Respondent was provided notice of the interview and was represented by legal counsel. Respondent provided a sworn oral statement after he was apprised of the purpose of the interview and the charges which had been filed against him, i.e., possession of a controlled substance in violation of the rules and regulations of law enforcement officers and a notice of the intended disciplinary action. During Respondent's sworn statement, he admitted that he had used cocaine and that use continued during the years 1982 through 1986. In mitigation, Respondent stated during his interview with Cpt. Leggett that his use was "occasional" and that he would only use a gram or two at any given time. At the time of his interview, Respondent appeared to be in control of his faculties. (Testimony of Respondent and Capt. Leggett).
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 Certificate Number 02-12297. DONE AND ENTERED this 26th day of September, 1988, at Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1988. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Paul A. Lavery 5325 West 20th Lane Hialeah, Florida 33012 Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 2302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
