The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent Kenneth Burns (Respondent) is a certified correctional officer in the State of Florida. On or about November 26, 2000, Highway Patrol Trooper Brannon Snead saw a Camaro, with its emergency flashers on, parked on Highway 90 in the vicinity of State Road 10. Trooper Snead stopped to see if he could help and observed two white males hitting the passenger of a black Ford Mustang that was also parked alongside the road. Trooper Snead intervened and eventually arrested Respondent and charged him with criminal mischief, burglary of an automobile, and battery. Trooper Snead identified his arrest report which was received in evidence as Petitioner's Exhibit A. Trooper Snead observed Respondent strike the driver of the Mustang twice. Trooper Snead observed that Respondent was under the influence of intoxicants and was impaired. After arresting Respondent, Trooper Snead transported him to the Leon County Jail. Trooper Snead observed Respondent's demeanor. Respondent was argumentative, combative, and uncooperative. Trooper Snead had to warn Respondent several times about his behavior. Respondent spit all over the back of Trooper Snead's patrol car. Detective Patricia Iadanza testified that she was delivering two criminals to the jail on November 26, 2000. She observed Trooper Snead with two persons who were in handcuffs in the booking area. One was quiet. The other person, who she later learned was Respondent, was loud and obnoxious. She found it necessary to tell Respondent to sit down and be quiet. Respondent was loud and rowdy and indicated he was a certified officer. Detective Iadanza reported she warned Respondent that his conduct would get him in serious trouble in the Leon County Sheriff's Department and he needed to straighten out. He did not stop his loud and rowdy behavior. Subsequently, she wrote a report regarding Respondent's behavior after he made a complaint about Trooper Snead. According to Petitioner's late-filed exhibit, Respondent entered a plea of nolo contendere to a charge of trespass of a vehicle, battery, and criminal mischief. He was placed on probation for one year.
Recommendation Based on the forgoing 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 Section 943.13(7), Florida Statutes, and that Respondent's certification be suspended for 24 months. DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 20th day of February, 2002. COPIES FURNISHED: Kenneth Burns 1727 Dewey McGuire Road Perry, Florida 32348-8087 Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William G. Bankhead, Secretary Florida Department of Law Enforcement Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Florida Department of Law Enforcement Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Respondent, Jose S. Galvan (Galvan) , was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission (Commission), on December 14, 1984, and was issued certification number 19-84-002-05. At all times material hereto, Galvan was employed as a police officer by the City of Homestead, Florida. By administrative complaint dated March 31, 1988, the Commission charged that Galvan lacked the good moral character required of a law enforcement officer because he had used excessive force in the arrest of one John Delvalle and did unlawfully assault one Jimmy Carey, a prisoner, with a pistol. Galvan denied the allegations of the administrative complaint, and the matter was referred to the Division of Administrative Hearings for a formal hearing. The John Delvalle incident. On May 12, 1986, between 11:30 p.m. and midnight, Galvan was on routine patrol for the City of Homestead. At that time Galvan observed two males, one of whom was later identified as John Delvalle, fighting in the parking lot of a shopping center. Galvan proceeded to the shopping center, but before exiting his patrol car to confront the combatants, radioed for a backup officer to assist him. Officer Rodney Clayton took the call, and proceeded toward the shopping center. Before Officer Clayton arrived at the scene, Galvan exited his patrol car and ordered the combatants to stop fighting. One of the combatants stopped fighting but the other, John Delvalle, kept his fists up and announced his intention to continue the fight. Galvan again ordered Delvalle to stop fighting or he would be arrested. When Delvalle persisted, Galvan attempted to arrest him, but Delvalle bolted from the area. When Delvalle bolted, Galvan radioed the dispatcher that the suspect was running from the scene, and then took up a foot pursuit after Delvalle. At this time, Officer Clayton arrived at the shopping center, and observed Galvan in pursuit of Delvalle. Officer Clayton drove his patrol car parallel to Delvalle's line of flight, overtook him, and then stopped his car in front of Delvalle to block his escape. At this point, Delvalle was approximately two feet from the patrol car, and was leading Galvan by one or two hundred feet. When Officer Clayton stopped his car Delvalle immediately raised his hands, dropped to one or two knees and exclaimed "I give up. I stop." Officer Clayton then grabbed Delvalle's left hand, put it behind his back and began handcuffing him. During this period, Delvalle was submissive to arrest and made no threatening gestures. As Delvalle was being handcuffed, Galvan arrived and announced loudly to Delvalle words to the effect "Don't you ever run from me again" or "Don't you run from the cops again", and kicked Delvalle twice in the side of the face, causing his head to strike the concrete. As a consequence, Delvalle suffered lacerations to his head, blurred vision in the right eye, and facial swelling. Galvan's conduct toward Delvalle was unwarranted, and committed when Delvalle was peacefully submitting to arrest. The Jimmy Carey incident. On May 28, 1986, Detective Robert Harrelson of the Homestead Police Department arrested a burglary suspect named Jimmy Carey. Carey had initially fled from the officers who sought to arrest him, but upon being apprehended was submissive and quiet. Carey was placed in Galvan's patrol car for transport to the Homestead Police Station. During the course of the ride, Carey continued to behave submissively and, continuing his quiet behavior, engaged in no conversation with Galvan. Upon arrival at the station, Galvan escorted Carey into the booking room, removed his handcuffs, and directed him to be seated on a bench at the opposite side of the room. Carey complied, and seated himself on the bench next to another prisoner, Fralon Warren, who was then being processed by the jailer Mark Jefferson. This bench was located 10 to 15 feet from the entry door. The jailer's desk, at which Jefferson was seated, was located midway between the door and the bench. Before entering the booking room, it is the policy of the City of Homestead Police Department that officers remove their service revolvers and secure them in a lock box located at the entry door. Galvan was aware of such policy but chose, as apparently other officers occasionally did, to ignore such policy because he thought he would be in the booking room for only a short period of time. Galvan's action was not prudent in view of the potential for violence within the booking room, and his decision to ignore departmental policy was unwarranted. While Carey was seated on the bench with prisoner Warren and Galvan was standing at the door some 10 to 15 feet away, Galvan overheard a comment of Warren's which he attributed to Carey. Although the proof fails to disclose the nature of the comment, it does demonstrate that Galvan found it offensive because upon its utterance he pulled his service revolver, pointed it at Carey and announced "Low-lifes like you have no reason to live for what you did." When Carey started to say something, Galvan cut him off and announced "you say one more thing to me, I'll blow your brains out." At this point jailer Jefferson interceded and told Galvan there was no need for his presence in the booking area. Thereupon, Galvan holstered his service revolver and departed. Galvan's conduct toward Carey was unwarranted because there was no real or immediate danger to himself or others. Rather, the proof demonstrates that Galvan reacted to a comment he found offensive, and as a result placed Carey in a position of fear for his life. Galvan under stress? At hearing, Galvan's wife testified that during the time in question she felt her husband was under a great deal of stress due to their separation and his police work, and that the Homestead Police Department was nonresponsive to her requests for assistance. Galvan did not, however, suggest that stress was the catalyst for his actions but, rather, denied that he committed any of the offenses. Considering the evidence in toto, the proof fails to support the conclusion that Galvan's actions were precipitated by severe emotional distress, and such suggestion does not, therefore, mitigate the seriousness of his conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Galvan's certification. DONE and ENTERED this 17th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 17th day of March, 1989. APPENDIX The Commission's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-16. Addressed in paragraphs 4-11. 17-26. To the extent necessary addressed in paragraphs 4-11. Otherwise rejected as testimony or subordinate. 27-41. Addressed in paragraphs 12-18. Otherwise rejected as testimony or subordinate. Galvan's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 4. Addressed in paragraph 5. 4-7. Addressed in paragraph 6. 8. Addressed in paragraph 7. 9-10. Addressed in paragraph 7. Otherwise rejected as not supported by credible proof. 11-12. Addressed in paragraphs 5, 7, and 8. The proposal that Officer Clayton slapped Delvalle in the face is rejected as not supported by credible proof. 13-16. Rejected as not supported by credible proof. See paragraphs 9-11. 17. Rejected as subordinate or not relevant. 18.-19. Addressed in paragraphs 12 and 13. 20. Rejected as not supported by credible proof. See paragraph 13. 21.-23. Addressed in paragraphs 14 and 15. 24.-25. Rejected as not supported by credible proof. See paragraphs 16-18. 26-.27. Rejected argument as recitation of testimony, subordinate, and contrary to the proof. See paragraph 16- 18. 28.-29. Rejected as subordinate or not relevant in light of the findings made in paragraphs 16-18. 30. Addressed in paragraph 19. COPIES FURNISHED: Joseph S. White, Esquire Office of the General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ronald J. Cohen, Esquire Klausner & Cohen, P.A. 1922 Tyler Street Hollywood, Florida 33020 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Rules 11B- 27.0011(4)(a), 11B-27.0011(4)(b), and 11B-27.0011(4)(c), Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Osborne was employed as a police officer with the Winter Haven Police Department. Approximately 15 times during 2001, Osborne picked up a prostitute, Sandra Cornell (Cornell), in his police vehicle and had sex with her while he was in his police uniform. The first time Osborne picked up Cornell, he was in his police car parked near a church in Winter Haven, Florida. Cornell was walking down the street, and Osborne called her over to the police car and asked her what she was doing that night. She told him that she was trying to make some money, and he told her to get in the back seat of the car. She got in the vehicle, and he drove to a spot near Publix and a nursing home. He told her, "Nobody will bother a police car." They got out of the car, and she performed oral sex on him. Osborne paid her $10 and gave her some cigarettes. The second time that she had sex with Osborne, he gave her $5. However, he discontinued paying Cornell for her services after their second encounter. Cornell continued to have sex with Osborne without payment, believing that he would arrest her if she did not continue to have sex with him. Another time Osborne picked Cornell up in the parking lot of the Regency Inn and told her to get in the back of the police car and lie down. She did as she was told. Osborne drove them to a water tower near the Regency Inn, where they had sex. Another time Osborne, while in his police uniform, picked Cornell up in the early morning hours and took her to Silver Lake in his police car. Osborne was on duty at the time. While the couple was having sex, Osborne received a police call. He left Cornell at Silver Lake so that he could respond to the call, and she had to walk back to town. The Winter Haven Police Department conducted an Internal Affairs investigation of Osborne's activities with Cornell. On July 19, 2002, Osborne was interviewed under oath by Lieutenant Katy Goddard and Lieutenant Jim Allen. During the interview, Osborne was asked the following questions and gave the following answers under oath: Q. Have you ever rode uh Sandy Cornell in your patrol vehicle . . . A. No, I have not. Q. . . . let me finish the question--in an unofficial business? A. No. * * * Q. Have you ever had sex with Sandy Cornell on duty? A. No, I have not. Q. Have you ever had sex with Sandy Cornell off duty? A. No, I have not. On December 6, 2002, the Department filed an Administrative Complaint against Osborne, alleging that the Criminal Justice Standards and Training Commission had issued Osborne an auxiliary law enforcement certificate and a law enforcement certificate on December 28, 1994. Osborne filed an elections of rights form on January 8, 2003, requesting an administrative hearing and disputing only the factual allegations dealing with having sexual relations with Cornell and soliciting another prostitute for sex. Osborne has not contested that he is a certified auxiliary law enforcement officer and a certified law enforcement officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jimmy Osborne did not violate Subsection 943.1395(6); finding that Jimmy Osborne did violate Subsection 943.13(7) and Rule 11B-27.0011(4)(a), (b), and (c), Florida Administrative Code; and revoking his certification as an auxiliary law enforcement officer and a law enforcement officer, pursuant to Subsection 943.1395(7). DONE AND ENTERED this 9th day of October, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 October, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jimmy Osborne 902 9th Street, Northeast Winter Haven, Florida 33881 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, 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 this 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact At all times relevant to this matter, Joe Pete Cannon was a member of the Town Council of Branford, Suwannee County, Florida, having served in that capacity for approximately twenty years. For approximately seventeen of the twenty years he was president of the five-member council. As president, he chaired the council meetings and assisted the mayor in town administration. Employees of the town were hired and fired by vote of the council; neither the mayor nor council president had that authority alone. Branford, as its letterhead states, is situated "on the banks of the Suwannee River". City limit to city limit, it runs about one-half to three- quarter mile long and has a population of approximately 700. Branford's chief of police, and currently only law enforcement officer is Fred Brittain. Chief Brittain has served in that capacity since 1989; he also served from 1975-1983. Between 1983 and 1989, he served 2 1/2 terms on the town council and resigned from the council in 1989. At various times in the past, Branford has employed three part-time police: Mr. Swafford, Mr. Chancey and, most recently, Roy Harper. Roy Harper was hired by the Town Council in September 1992, at the recommendation and request of Chief Brittain. He had approximately ten years' experience in law enforcement and was working on his two-year degree in criminal justice at the community college. When Harper was hired, Chief Brittain instructed him to conduct general law enforcement patrol work: "Preserve the peace; protect the public; enforce laws." The residential areas were experiencing vandalism, so Harper was told to check suspicious persons. Some burglaries and speeders were also described as problems. No quotas were established for traffic tickets, and no one suggested that traffic tickets should be a good source of revenue for the town. As to speeders, Chief Brittain explained his policy to Harper: up to ten miles per hour (mph) over the speed limit, stop and warn, or don't warn, as long as the person is not driving erratically; if the person is driving erratically or over ten mph over the limit, write a ticket, but use your discretion, as there can always be a good story. No policy was given for voiding tickets and Harper was allowed considerable discretion. Generally, both Chief Brittain and Harper had a policy of voiding tickets they wrote to teens if the parent said they would handle the discipline. As Harper described, he was not trying to cost the parent money, but just wanted to control the problem. After Harper was hired, the number of tickets written in Branford increased. This was as expected, because the more police you have, the more tickets get written. Moreover, both Harper and Chief Brittain were "radar certified" and running radar was a more efficient way to apprehend speeders. In October, November and December 1992, the number of citations were 80, 91 and 100, respectively, up from a high of 71 and an average of 46.5 over the prior twelve months period. Harper wrote tickets, but he also gave a lot of warnings. Around the end of November 1992, Harper had been "running radar" for a week from the ballpark on Governor Street. He had been giving warnings and telling folks that after the week was up he was going to write tickets. He stopped a lot of people and gave this warning. At approximately 7:34 p.m. on November 21, 1992, Howard stopped a young lady heading eastbound on Governor. She was speeding at 42 mph in a 25 mph zone. She said she was a newcomer to the area. When Harper asked where she went to school, she said "Branford". He told her she should be aware of the speed limit, and he issued the citation. Harper talked to Chief Brittain at town hall that evening and asked whether he knew Ms. Kelley, and said he had written her a ticket. Chief Brittain said the Kelleys had lived there all their lives. Jennifer Kelley attends Branford High School. She is a straight-A student, president of the student body, and "Miss BHS". Her father is Ernest Kelley, a life-time resident of Branford. He owns Kelley's Auto Supply, the NAPA store, which has been in the family since 1961, and he runs an investment business. Mr. Kelley found out about the ticket on Sunday night, and the next morning he went to see his insurance man, Tommy Lewis. He was concerned that this was a first offense, that Jennifer was known as a good kid and that maybe the ticket could be mitigated. Kelley insured the whole family on one policy and Kelley's own driving record was not so good. Lewis told him that many times Judge Kennon would waive the points and let them pay a fine. Lewis also told him that 15 mph over the limit was a "major violation", by insurance standards, and that the three options were: a) "local discretion"; b) "the judge's discretion", and c) the guaranteed option of driving school, in lieu of points. Kelley also said he could talk to Cotton State (the insurance company) and tell them this is a good kid. Tommy Lewis, Ernest Kelley and Joe Pete Cannon are golfing buddies; they are three of the twelve or fifteen Branford citizens who are members of the Chiefland County Club. After talking with Tommy Lewis, Ernest Kelley called Joe Pete Cannon and asked him to drop by his office. Cannon did, and Kelley told him about Jennifer's ticket and what Lewis had told him about the options. The driving school option, a sure thing, was not the first choice because of the child's age and the three-time limit over a lifetime. Kelley asked Cannon if he should go talk to "Fred" (Chief Brittain). Cannon said that Fred was over at town hall and offered to go see what local discretion meant. Cannon went over to see Fred, as promised. He asked the chief whether anyone had ever issued a ticket or warning to Jennifer before and he asked whether the ticket could be reduced to a warning in this case. Joe Pete Cannon, according to Chief Brittain, did not use the terms "void the ticket"; Brittain used the terms, and responded that he could not "void" another officer's ticket. Chief Brittain checked to see if the ticket had gone into the court system yet. It had not, and the chief changed the 42 mph to 40 mph and said that was all he could do. Cannon went back to Kelley and told him what happened. Kelley went to the judge, and the ticket was resolved with a $90 fine and waiver of points. If Cannon had not been a political figure, Chief Brittain would not have seen any problem with the approach. The chief had dealt with parents and violators before and he considered voiding a ticket he wrote as part of the discretion an officer should use. The questions, to Chief Brittain's mind, were not improper, except that Cannon was acting on behalf of a friend, instead of himself or a family member. At no time did Chief Brittain suggest to Cannon that Kelley should talk directly to Roy Harper about the ticket. Kelley had a chance to talk with Harper a few days later when Kelley was at the auto store after closing time. Harper stopped at the store for a routine check. The men introduced themselves and had a cordial chat. Kelley said that he had no doubt that his daughter was speeding but he wanted to make sure she was not causing trouble. Kelley told Harper he had gone to the judge and the points would be withheld when the fine was paid. Harper said that was the thing to do. Kelley was not angry with Harper. Over the next month things got stirred up in Branford about ticket writing and the unwritten policies about who got warnings and who didn't. Mike Suggs has lived in the Branford area all his life. On Christmas day 1992, his 16 year old son, Wade, was ticketed by Roy Harper as the boy was heading home out of town. The ticket reflects he was going 48 mph in a 30 mph zone. Mike Suggs talked to Cannon a few days later and said he didn't think it was fair, as he heard others had been stopped, but didn't get a ticket. He did not ask Cannon to throw it out and he did not go to Chief Brittain or Harper to complain. Gary Howard, a member of the town council complained to Chief Brittain until he heard that the youth was doing 18 mph over the speed limit, not 5 mph as his mother had said. Christine Langford, now married to Gary Howard, was clocked on Roy Harper's radar doing 54 mph in a 30 mph zone, going north on state road 129. She got a ticket and her husband felt she deserved it. Shane Harris was stopped and ticketed by Roy Harper on January 2, 1993, for doing 48 mph in a 30 mph zone. The ticket was voided when Shane's dad came and talked to Harper. The boy was in the military service; his dad is a law enforcement officer in Lafayette County. Bobby Avery was stopped by Roy Harper in December 1992 for speeding on the Lake City highway in his pick-up truck. Avery had been drinking and was a little belligerent. When he identified himself as an inspection officer from DOT, Harper called Chief Brittain to come identify him. Chief Brittain went out to the scene and did verify who Avery was, but did not mention that he, himself, had stopped Avery before. Avery's attitude was sarcastic and there was alcohol on his breath, but he was not drunk or impaired. Roy Harper let him go with a warning, primarily because he did not want the bad attitude to cause him to write the ticket. Harper found out later that Avery had been stopped before by Chief Brittain. Ms. Mullins was another speeder who just got a warning from Roy Harper. Her speed was just over the limit and she told him she "never speeds in Branford", but was on her way to the doctor's office. He told her to go and call him from the doctor's office and he would check with Fred Brittain, but if she did not call, he would send her the ticket in the mail. She called, and did not get the ticket, because Chief Brittain confirmed that he never had a problem with her. The Holzclaw boy was another case involving Roy Harper. There had been some vandalism or other criminal activity in one of the neighborhoods. Harper saw the boy in a vehicle around 10:00 or 10:30 p.m. He watched him and followed him out of town and across the Suwannee River bridge where he stopped him. After questioning the boy about some guns and equipment he had in the truck for hog-hunting, Harper let him go. The boy's father felt he had been harassed and complained to Joe Pete Cannon and to the sheriff. Nell's Restaurant in downtown Branford is the hub of social intercourse in the community. Folks gather there at lunch and on Saturdays and share news and views. At Nell's, the Branford police department was a hot issue. Richard Marquette, fourteen years in Branford, manager of a gas company and former vice-president of the Chamber of Commerce, heard that Chief Brittain was told he could have as many deputies as he wanted, as long as they wrote enough tickets to pay their salaries. He didn't know whether this was true and he went to see Joe Pete Cannon about it. He heard that Harper was hiding with his radar up at the school by the football field. He heard customers say they would rather go to High Springs because Branford was a speed trap. Tommy Lewis, in his usual course of business, gets calls from people wanting to know what a ticket will do to their insurance. He got a lot more calls when Roy Harper was a Branford police officer. He, and others, including M.O. Clark, another insurance agent in Branford, were concerned how negative publicity would affect business from people outside the town. Cannon, at some point after the Jennifer Kelley incident, talked to Chief Brittain about the complaints he was getting and the rumors he was hearing about some people getting warnings and others getting tickets. The chief assured him that Harper was doing his job and the police were being fair. By early January, and after the Holtzclaw complaint, Joe Pete Cannon was exasperated and approached the chief one last time: ...But anyway, I came down on Monday morning, January 4, and I asked Chief Brittan about the ticket, you know, as far as the warning. I said , "One person---" Because I didn't know who it was. The man said he would rather not tell me, you know, as far as--- I said, "What's this about one person, you know, as far as not one warning, but got two warnings and still hadn't got a ticket?" So he lied to me. He said, "That ain't happened." And I told him, I said, "Fred, don't you tell me a lie." Then he gave me a name. He gave me the name of who it was. So I told him, I said, "Fred, I have come to you---" That would be as far as about the third or so time. I said, "I've talked with you, you know, as far as these different---" And I said, "I'm fed up with it." I said, "On these complaints.", and I said, "I'm telling you right now, where it won't be no surprise or no secret. At the next council meeting---" Which would be eight days off the 12th of January. "---I'm going to recommend to the Council and tell them, if I can get a move and a second, I will vote with them to terminate our part time policeman's employment." I never talked with Fred Brittan, Chief Brittan, again. And I told him, I said, "I don't want it to be no surprise or no secret." That's what I told him then. I walked out and never communicated with Chief Brittan again until I came into that Council meeting there. And did just exactly what I said I was going to do. I brought it up, explained it, and so that's where we stand now. (Advocate's Exhibit #12, deposition of Joe Pete Cannon, pp 41-42) By the time of the council meeting on January 12th, the news of Harper's employment jeopardy was all over town. Chief Brittain felt Harper was doing his job, and after the conversation with Cannon on the 4th, the chief went around talking to the town council members and others. Cannon told Ernest Kelley and Tommy Lewis on the golf course, and when Kelley asked if it was a secret, Cannon replied that it wasn't, as he had already told Chief Brittain. Harper's employment contract with the Town of Branford is a form contract used for other part-time police. It provides that the employee serves at the pleasure of the town council and is under the supervision of the Chief of Police. It also provides: The policeman is further to be answerable to the Town Council for the conduct of duties of such office and shall be subject to suspension or removal by the Town Council, for cause, at will or at pleasure of the Town Council." (Advocate's exhibit #8) The Harper issue was not specifically on the agenda for the January 12th meeting. The agenda is generally prepared on the Friday before the Tuesday meeting. Cannon did not have the clerk put it on the agenda because the "police report" was already on the agenda, as it always is. In fact, when Harper was hired by the council, it was in the "police report" portion of the agenda. The minutes of the meeting accurately and succinctly describe the vote of the council: POLICE REPORT Chief Brittain gave the police report at this time. Council President Joe Cannon brought to the attention of the Council that he has had numerous complaints about the part-time policeman. Cannon said that he had talked with the Police Chief about the high number of speeding tickets and complaints. He felt that the problem had not been resolved and that we did not need the part-time policeman any longer. MOTION MADE BY GARY HOWARD TO TERMINATE THE EMPLOYMENT OF ROY HARPER, PART-TIME POLICEMAN. SECONDED BY ROY BAGLEY. VOTE: IN FAVOR: HOWARD, BAGLEY, AND CANNON. AGAINST: MURRAY AND PURCELL. MOTION CARRIED BY MAJORITY. A couple of local businessmen were present to state they felt the high number of speeding tickets would run-off business. (Advocate's exhibit #7) Roy Harper and some others feel that the vote taken at the meeting was a foregone conclusion and that Joe Pete Cannon had already discussed the issue with other council members. Harper's wife, Linda Harper, was doing an internship in Branford for her criminal justice degree program. She was in Chief Brittain's office in December 1992, while he was on vacation, as she was working on something to do with paperwork procedures, making data entries and reorganizing the evidence room. She saw Joe Pete Cannon and Gary Howard alone in Town Clerk Donna Owen's office with the door closed. She did not overhear any of the conversation and has never personally witnessed any two elected officials discussing the matter. Chief Brittain believes that Cannon must have discussed Harper with other council members before the meeting because he remembers that at some point prior to the meeting, Cannon told him he had the votes to fire Harper. Cannon denies telling the chief he had the votes, but rather says he only said that if he had the votes he was going to fire Harper. Not even Chief Brittain's version of the conversation would support a finding that Cannon had spoken with his fellow council members about their votes. No one testified that "out of the Sunshine" discussions actually took place between Cannon and any other council members. No one actually overheard such discussions. There were, of course, very vigorous discussions of the issue in the town - discussions inspired by the complaints being made, by local businessmen worried that Branford would become another "Ludowici, Georgia", and by Chief Brittain's own advocacy on Harper's behalf. Some days after the meeting, back at Nell's Restaurant, Joe Pete Cannon told L. T. Chesson, Chief Brittain's father-in-law, that Fred let him down, that he wasn't happy with the way Fred was acting and that he (Fred) could be brought before the town council. Cannon was upset with Chief Brittain but not because he didn't take care of Jennifer Kelley's ticket. Cannon felt he presented some town concerns to the chief and Brittain was not responsive. These were some good faith concerns that the unwritten policies of the Branford police were not being even- handedly applied. Avery got two warnings; a young woman who was a model teen and who, understandably, was described as mortified by the entire turn of events and notoriety, got no warning. In summary, the abundant evidence in this proceeding fails to support a finding that Joe Pete Cannon misused his position with regard to the Jennifer Kelley ticket or the termination of Roy Harper. Rather, in response to several complaints, he approached first the police chief, then his fellow elected officials, in the appropriate forum, on an issue which he perceived to be a threat to the small town's harmony and weal.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics issue its final order and public report finding no violation of section 112.313(6), F.S. by Joe Pete Cannon, and dismissing the complaint. DONE AND RECOMMENDED this 6th day of July, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3627EC The following constitute specific rulings, pursuant to section 120.59(2), F.S., on the findings of fact proposed by each party. The Advocate's Proposed Findings 1.-2. Adopted in paragraph 1. 3.-4. Adopted in paragraph 9. 5. Adopted in paragraph 12. 6.-7. Adopted in substance in paragraph 12. Rejected as unnecessary. Adopted in substance in paragraph 13. Adopted in substance in paragraph 1. Adopted in substance in paragraph 14. Adopted in part in paragraph 17; otherwise rejected as unnecessary. Adopted in part in paragraph 15; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 18; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 16; otherwise rejected as contrary to the weight of evidence. Adopted in paragraph 6. Adopted in paragraph 25. Adopted in paragraphs 20 and 21. Adopted in paragraph 23. Adopted in part in paragraphs 28 and 29; otherwise rejected as unsupported by the weight of evidence. Adopted in part in paragraph 31; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 34; otherwise rejected as unsupported by the evidence. Adopted in part in paragraph 29; otherwise rejected as unsupported by the weight of evidence. Cannon's version of the conversation is adopted as credible and consistent. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 36; otherwise rejected as unnecessary or contrary to the weight of evidence. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 37; otherwise rejected as unsupported by the weight of evidence. Rejected as utterly without credible supporting evidence. 30.-31. Rejected as contrary to the greater weight of evidence. Respondent's Proposed Findings A.-B. Adopted in paragraph 1. Adopted in paragraph 9. Adopted in part in paragraph 34; otherwise rejected as unnecessary. Adopted in part in paragraph 35; otherwise rejected as unnecessary. F.-P. These paragraphs are substantially argument, comment on the evidence and some legal authority. The findings of fact therein are substantially adopted. COPIES FURNISHED: Stuart F. Wilson-Patton, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 David A. Glant, Esquire Post Office Box 2519 High Springs, Florida 32643-2519 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether or not, between the periods of January 1976 and August 1977, the licensees or their agents, servants or employees allowed the license premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Whether or not, between the periods of January 1976 and August 1977, Ulysses Brown, the licensee and/or operator of the licensed premises had been convicted of letting the premises for prostitution and keeping a disorderly place, thereby violating Section 509.261(4)(a), Florida Statutes.
Findings Of Fact At all times material to the notice to show cause, Alma Mae Young and Ulysses Brown were the holder of license No. 23-7079H held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. This license was held to do business as Young's Rooming House, located at 7000 N.W. 21st Avenue, Miami, Florida. The facts in this case show that on October 23, 1976, Officer Otis Chambers, of the Dade County Public Safety Department, Dade County, Florida, went to the licensed premises known as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida. At that time, Officer Chambers was operating in the capacity of an undercover plainclothes officer investigating vice matters. He was in the company of a prostitute and when he approached the desk in the licensed premises, he spoke with the licensee, Ulysses Brown. In the conversation with Mr. Brown, he identified the woman in his company as being a prostitute, as shown by the remarks to Brown, and Brown acknowledged this information and rented a room to the officer. Subsequent to the events that transpired in the conversation between Officer Chambers and the licensee Brown, Brown was arrested and charged with violations of Section 796.06, Florida Statutes, which pertains to renting space for prostitution and with a violation of Section 796.07(2)(c), Florida Statutes, which is an allegation of receiving, offering or agreeing to receive, any person into any place, structure, building or conveyance with the purpose of prostitution or permitting any person to remain in those locales for such purpose. The licensee was found guilty of both offenses and placed on a period of probation for six months. Evidence of this finding by the Court may be seen as Exhibit No. 4 admitted into evidence. It was also shown in the course of the hearing that a number of complaints have been made by neighbors who live in the area of the licensed premises, to the effect that the licensed premises was a place in which prostitution was occurring; The comment was also made by these individuals that men and women were seen in the licensed premises who were not wearing clothes. The opinions were testified to by Officer John Wilson of the Dade County Public Safety Department who had spoken with a number of the residents of the area where the licensed premises is located. Although Ulysses Brown has claimed that he is no longer involved with the licensed premises, a recent inspection by Agent John H. McKinnon of the Division of Hotels and Restaurants reveals that Ulysses Brown is still working in the licensed premises. According to Brown, and in keeping with what the agent actually observed about the licensee's intention, Brown is to work and take care of the licensed premises and Young is to be the owner. Based upon the facts as reported, the Petitioner has brought two charges in the notice to show cause. The first charge alleges that between the periods of January 1976 and August 1977, the licensees, their agents, servants or employees, allowed the premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Section 509.032, Florida Statutes, states the duties of the Petitioner in the following language: 509.32 Duties.- (1) GENERAL.- The division shall carry out and execute all of the provisions of this chapter and all other laws now in force or which may hereafter be enacted relating to the inspection or regulation of public lodging and public food service establishments for the purpose of safe- guarding the public health, safety, and welfare. The division shall be responsible for ascertaining that no establishment licensed by it shall engage in any misleading advertising or unethical practices as defined by this chapter and all other laws now in force or which may hereafter be enacted. The division shall keep accurate account of all expenses arising out of the performance of its duties shall file monthly itemized statements of such ex- penses with the Department of Banking and Finance together with an account of all fees collected under the provisions of this chapter. A reading of this paragraph of this section leads to the conclusion that its purposes are to create the authority in the Petitioner to implement regulations to enforce the provisions of the overall Chapter 409, Florida Statutes. It is not read to be a substantive law which would empower the Petitioner to take action based upon the language of that section per se. Therefore, an violation of Section 796.07, Florida Statutes, would not promote the right to take action against the licensees under Section 509.032, Florida Statutes. The second count in the notice to show cause pertains to an allegation that between the periods of January 1976 and August 1977, the licensees and/or the operator, and in this instance that person is Ulysses Brown, has been convicted for letting the premises for prostitution and keeping a disorderly place which is in violation of Section 509.261(4)(a), Florida Statutes. That provision of the statutes reads as follows: 509.261 Revocation or suspension of licenses; fines; procedure.- (4)(a) Any person interested in the operation of any such establishment, whether owner or operator, has been convicted, within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in narcotics, or any other crime involving moral turpitude. The term "convicted" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. As stated before, Ulysses Brown, one of the licensees, was found guilty of Sections 796.06 and 796.07(2)(c), Florida Statutes. Those violations were established through an entry of the judgment finding the licensee guilty on January 20, 1977. That finding was reached within five years of the date of the action for suspension or revocation. This finding by the Court, coupled with the continued involvement by Ulysses Brown in the operation of the licensed premises and the background problems which have been prevalent in the licensed premises, would justify action being taken against both licensees, to-wit, Alma Mae Young and Ulysses Brown. The action spoken of was the right of action under Section 509.261(4)(a), Florida Statutes, and is the right of direct action against Ulysses Brown and a right of indirect action against Alma Mae Young for her knowledge, negligence or lack of due diligence in the operation of the licensed premises.
Recommendation It is recommended that the license held by the Respondents Alma Mae Young and Ulysses Brown to trade as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida, license No. 23-7079H be revoked. DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation 725 South Bronough Johns Building Tallahassee, Florida 32304 Alma Mae Young Ulysses Brown Youngs Rooming House 7000 N.W. 21st Avenue Miami, Florida
The Issue The issue presented in this case is whether there is just cause for the City of Cape Coral's decision to terminate the employment of Hector Calderon, a police officer with the City of Cape Coral Police Department.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The City of Cape Coral (the "City") employed Hector Calderon as a police officer in the operations division of the Cape Coral Police Department (the "Department") from January 11, 1997 through January 11, 2002, the effective date of his termination. Officer Calderon was employed as a patrol officer, and his main duties were traffic enforcement during the 6 p.m. to 6 a.m. shift. On October 29, 2001, Sgt. Keith Perrin of the Department received a telephone complaint concerning Officer Calderon from a woman named Cheryl Sugar. Ms. Sugar told Sgt. Perrin that Officer Calderon had lived with her over the past several months. She offered information about narcotics usage and deviant sexual behavior by Officer Calderon, both on and off duty. She specifically alleged that Officer Calderon had been taking cocaine. Ms. Sugar also told Sgt. Perrin that Officer Calderon had been seeing a woman named Nicole Beougher, whom he had met working at a Circle K store when he stopped there during his work shift. Ms. Sugar alleged that Officer Calderon had been taking Ms. Beougher on "ride-alongs" in his police car. Ms. Sugar was angry at Officer Calderon because she had only recently discovered that he had also been dating Ms. Beougher. She and Ms. Beougher had spoken to each other, and realized that Officer Calderon had been deceiving both of them. Sgt. Perrin made a report to Lt. Michael Maher, the Department's head of internal affairs. Lt. Maher contacted Ms. Sugar by telephone on the morning of October 30, 2001. Ms. Sugar reiterated her allegations and agreed to come in later that afternoon to give a sworn statement and submit to a polygraph examination. However, she telephoned Lt. Maher at 3 p.m. and stated that she had placed herself in an "awkward position" and could not give a statement after all. From that point forward, Ms. Sugar declined to cooperate with the Department, despite frequent attempts by Lt. Maher to secure her testimony. On or about November 3, 2001, officers from the Department responded to a domestic dispute call involving Officer Calderon and Ms. Sugar. The officers on the scene noted that Officer Calderon acted unusually. He was upset, shaken, and verbally abusive. He refused to leave the scene until Lt. Maher gave him a direct order to leave or go to jail. This incident, coupled with Ms. Sugar's earlier complaint, led Lt. Maher to place Officer Calderon on administrative leave and send him for a "fitness for duty" psychological evaluation. The evaluation was conducted by a psychologist on November 8, 2001. The psychologist concluded that Officer Calderon was not capable of returning to duty. Officer Calderon was placed on administrative desk duty and his patrol vehicle was taken from him. Officer Calderon's patrol vehicle was assigned to another officer, Robert Slager. Following routine procedure, Officer Slager inventoried the vehicle to assure that Officer Calderon's personal property was accounted for and returned to him. While conducting the inventory, Officer Slager discovered sixteen driver's licenses in the vehicle. The licenses were in a cup holder, in plain sight. Upon investigation, Lt. Maher determined that the driver's licenses had been confiscated by Officer Calderon during traffic stops over a four-year period. Department procedure called for confiscated licenses to be turned in to the records division along with the citation, but Officer Calderon simply kept them in his vehicle. Lt. Maher questioned Officer Calderon as to why he kept the licenses. Officer Calderon's only explanation was that they were his "personal collection." Several officers testified that they had heard of the practice of keeping confiscated driver’s licenses as trophies, but all denied that they did it themselves. They could not or would not name any other officer who indulged in the practice. Officer Calderon kept the licenses in plain sight, and his vehicle was inspected by his superiors on a regular basis, yet no disciplinary action was taken against him concerning the confiscated licenses until this investigation developed. Despite Ms. Sugar's failure to cooperate, Lt. Maher continued investigating her allegations. Ms. Sugar had provided the name of Nicole Beougher, and Lt. Maher contacted Ms. Beougher, who provided a sworn statement and testified at the hearing. In October or November 2000, Ms. Beougher was working nights in a Circle K store in Officer Calderon’s patrol zone. She was 18 years old. Officer Calderon came in, and they began talking. He started coming in frequently to talk to her. He gave her his business card, adding a handwritten note with the code for his voice mailbox at work. During their conversations, Ms. Beougher mentioned that she had never ridden in a police car, and Officer Calderon offered to take her on a "ride-along." At the time, the Department had a "ride-along" program as part of its community outreach. The program encouraged citizens to ride with patrol officers as they conducted their daily course of duties. Interested persons were required to fill out a release of liability form and permit the Department to run a criminal background check. By Department policy, each citizen was limited to one ride-along every six months. Ms. Beougher completed the form and went on a ride- along with Officer Calderon on Christmas Eve 2000. He picked her up at her mother’s house at 6 p.m. and drove to the police station for roll call. Then Officer Calderon and Ms. Beougher went out on the road on his patrol duties. They discussed personal matters, such as whether Ms. Beougher had a boyfriend. At around midnight, they drove to a secluded area on the north end of Cape Coral. Officer Calderon stopped the car. They both got out and walked to the rear of the car. Officer Calderon began kissing Ms. Beougher. Nothing further of a sexual nature occurred. Officer Calderon dropped Ms. Beougher off at her mother's house at approximately 5:30 a.m. on Christmas Day. In January 2001, Officer Calderon and Ms. Beougher began seeing each other regularly. On May 6, 2001, Officer Calderon moved in with Ms. Beougher. While they lived together, Officer Calderon, on duty, would stop by their apartment five or six times per shift, sometimes for as long as 45 minutes. On one or two of these occasions, they engaged in oral sex. While they lived together, Ms. Beougher rode along with Officer Calderon on his work shift on 15 to 20 different occasions. Ms. Beouger never filled out another release of liability form, and the number of ride-alongs was clearly in violation the Department's policy. However, the evidence at hearing established that the Department's enforcement of its policy was lax. Officer Calderon's shift sergeant saw Ms. Beougher with him on more than one occasion and made no inquiry. On one or two of these unauthorized ride-alongs, they drove to a secluded area of northern Cape Coral, and Ms. Beougher performed oral sex on Officer Calderon. One evening while they were living together, Officer Calderon brought home a small amount of cocaine and offered to use it with Ms. Beougher. She was afraid to use it, fearing that Officer Calderon was trying to set her up for an arrest. Ms. Beougher said she would use it if he did first. Officer Calderon snorted the cocaine through a rolled dollar bill. Ms. Beougher then joined him. From that point forward, Officer Calderon and Ms. Beougher used cocaine frequently on weekends when Officer Calderon was not working. Officer Calderon and Ms. Beougher frequently spent weekends at a Motel 6 in North Fort Myers. They did this to get away from their roommate and to be closer to the clubs downtown. They would drink heavily at the clubs, to the point where Ms. Beougher could not remember much of what occurred. They would bring other people, male and female, back to the motel and have sex with them. They also used cocaine while at the motel. Officer Calderon sometimes worked details at a bar called the Hired Hand Saloon, a place he also frequented when off duty. A prior acquaintance named Roger Montgomery worked there as a bouncer. Ms. Beougher testified that Mr. Montgomery was the source of Officer Calderon's cocaine. At the hearing, Mr. Montgomery confirmed the details of Ms. Beougher's testimony. At the Hired Hand, Mr. Montgomery would give Officer Calderon "bumps" of cocaine, i.e., small amounts sufficient for him and Ms. Beougher to get high. On at least two occasions, Mr. Montgomery sold $50 worth of cocaine to Officer Calderon. Mr. Montgomery never gave or sold cocaine to Officer Calderon while he was on duty. Mr. Montgomery never saw Officer Calderon appear to be under the influence of alcohol or any other drug while he was on duty. Mr. Montgomery never actually witnessed Officer Calderon taking cocaine, though he was certain that he saw him high on cocaine. Ms. Beougher testified that she and Officer Calderon used cocaine while at the Hired Hand. On one occasion when Officer Calderon was off duty at the Hired Hand, he asked Mr. Montgomery for cocaine. Mr. Montgomery did not have the cocaine on his person, but did have some in the ashtray of his truck. He gave Officer Calderon the keys to his truck, and Officer Calderon went out to the truck. When Mr. Montgomery later went out to his truck, the cocaine was gone. Officer Calderon invited Mr. Montgomery to the Motel 6 to use cocaine and have sex with Ms. Beougher and him. Mr. Montgomery wanted to go, but couldn't. Mr. Montgomery testified that Ms. Beougher, under the influence of alcohol and cocaine, performed oral sex on both him and Officer Calderon at the Hired Hand. Ms. Beougher could not recall this incident, but did not deny that it might have happened while she was under the influence. One evening at the Hired Hand, Officer Calderon gave Mr. Montgomery a bag of marijuana. Officer Calderon told him that he had confiscated the marijuana from a group of teenagers while on duty. Officer Calderon had earlier shown the marijuana to Ms. Beougher and told her the same story. On one occasion, Officer Calderon asked Mr. Montgomery to get him the drug Ecstasy. Mr. Montgomery made the attempt but was unable to get it because his seller's supplier had been arrested. Officer Calderon and Ms. Beougher took the drug Oxycontin on several occasions. Officer Calderon procured the drug from a person unknown to Ms. Beougher. Officer Calderon had no car other than his patrol vehicle, which he was authorized to take home. Ms. Beougher testified that while off duty, Officer Calderon drove the patrol vehicle under the influence of alcohol on several occasions. He also allowed Ms. Beougher to drive the police vehicle. Sometime in August 2001, Officer Calderon moved out of Ms. Beougher's apartment. He told Ms. Beougher he was moving because there had been a drug bust in the apartment next door, and he was concerned that the Department would somehow associate him with it. Officer Calderon's move also coincided with his learning that Ms. Beougher was pregnant with twins. Ms. Beougher was certain that Officer Calderon was the father. Officer Calderon did not deny it, but wanted to make certain prior to undertaking support obligations. The results of a DNA test were pending at the time of the hearing. Ms. Beougher testified that her drug use ceased when she learned she was pregnant, and that she never saw Officer Calderon take illegal drugs after she stopped taking them. During the investigation, Lt. Maher discovered that Officer Calderon failed to notify the Department of several address changes, in violation of General Order D-1, Section III.18. Officer Calderon admitted to the sexual allegations that occurred at the Hired Hand and the Motel 6. He denied having sex with Ms. Beougher in his patrol car, and denied that he had ever used any illegal drugs. Officer Calderon alleged that Ms. Sugar and Ms. Beougher were bitter about his seeing them both at the same time, and thus concocted a false tale of his drug usage. He contended that Mr. Montgomery, a known drug dealer, had been intimidated through fear of arrest into testifying, and that Mr. Montgomery was sexually involved with Ms. Beougher and thus part of the conspiracy. Officer Calderon's contentions about the opposing witnesses cannot be credited. Neither Ms. Beougher nor Mr. Montgomery knew the other's last name, and both credibly testified that their only involvement with each other was through Officer Calderon at the Hired Hand. Ms. Beougher admitted to being angry at Officer Calderon, but credibly denied that she invented her story of drug usage. Adding to her credibility was that she freely implicated herself in the illegal activities that occurred, rather than portraying herself as an innocent bystander. Mr. Montgomery admitted that his motive for testifying was fear of prosecution for his drug dealings. He was reluctant to testify against Officer Calderon. He did not want to get Officer Calderon in trouble. His testimony was credible and corroborated that of Ms. Beougher as to the particulars of occurrences at the Hired Hand. Officer Calderon had a prior disciplinary history, which Chief Gibbs testified played a role in his decision to terminate Officer Calderon. In 1999, Officer Calderon was given a eight-hour suspension without pay for failing to report the discharge of his service revolver. He and his live-in girlfriend at the time, Allison Gimello, were involved in a domestic disturbance. When the police arrived, they discovered bullet holes in a closet door. Ms. Gimello told police that Officer Calderon had fired his police weapon after threatening to kill her. She later changed her story, saying that she had accidentally fired the gun. Because of this ambiguity, Officer Calderon was disciplined only for not reporting the discharge of his weapon. He did not file a grievance or appeal his suspension. Also in 1999, Officer Calderon was disciplined for showing a photograph of himself, naked with an erection, to female employees of the Department. Without grievance or appeal, Officer Calderon received a 24-hour suspension without pay. Upon completion of the internal affairs investigation in the instant case, Officer Calderon was charged with the following: failure to notify the Department of an address change; loafing while on duty; use of a controlled substance while off duty; purchase and possession of a controlled substance while on and off duty; intentional violation of state law; conduct unbecoming a public employee; using the prestige of his official position or the Department's time, facilities, equipment or supplies for private gain; improper performance of his duties; engaging in sex while on duty and in a City of Cape Coral police vehicle; malfeasance or misfeasance in office; perpetration of an act or conduct which causes substantial doubt concerning an officer's honesty, fairness, or respect for the rights of others or for the laws of the state, irrespective of whether such act or conduct constitutes a crime; and violation of the rules of conduct of the Criminal Justice Standards and Training Commission ("CJSTC") by failing to maintain good moral character and having a pattern of conduct not consistent with state standards. Lt. Maher's internal affairs report, dated December 5, 2001, sustained all of the charges except loafing on duty and use of a controlled substance. Lt. Maher dropped the loafing charge after consulting with Officer Calderon's immediate superiors, who did not see a problem with his frequent visits to the Circle K store or to the apartment he later shared with Ms. Beougher, provided his productivity was unaffected. It was conceded at the hearing that Officer Calderon was one of the most productive officers in the Department throughout his employment. Lt. Maher dropped the drug usage charge because the only drug test given to Officer Calderon came back negative. At the outset of the investigation, Lt. Maher wanted to test Officer Calderon for drugs but was advised by the City attorney that he lacked reasonable suspicion to order a test. By the time his investigation built reasonable suspicion, Officer Calderon had been placed on administrative duty and was aware that the Department was looking into his activities. Nonetheless, Lt. Maher believed that, without a positive drug test, he could not sustain a charge of drug usage. At the hearing, Officer Calderon challenged the alleged inconsistency between the Department's finding there was insufficient evidence to support that he used drugs, but finding the same evidence sufficient to support that he bought and/or possessed drugs. This argument is rejected. The evidence at hearing established that Officer Calderon both possessed and used drugs. Lt. Maher's decision to drop one of the potential charges does not change the fact that the other charge was proven. Lt. Maher's report was forwarded to Officer Calderon's immediate superiors for a recommendation on corrective action. One of the superiors, Lt. Craig Durham, recommended termination. Officer Calderon's immediate superior, Sgt. John Dickman, recommended a 30-day suspension without pay or benefits. These recommendations then went to the division commander, Major B. A. Murphy, who recommended termination and forwarded the file to Chief Gibbs for his review on December 12, 2001. Officer Calderon elected to have the recommended discipline reviewed by a Department Disciplinary Review Board ("DDRB"). The DDRB was composed of five Department employees: two selected by Officer Calderon, two selected by the Department's administrators, and a fifth member selected by the other four. Lt. Maher presented the case for the Department. Officer Calderon presented his case in rebuttal. The DDRB then deliberated and rendered a decision. On December 19, 2001, the DDRB unanimously recommended termination. On December 21, 2001, Chief Gibbs entered a Final Notice of Disciplinary Action terminating Officer Calderon's employment. Officer Calderon sought and received an appeal of this decision with the City Manager. On January 10, 2002, Interim City Manager Howard Kunik upheld the decision to terminate Officer Calderon's employment.
