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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Alphonso J. Clark is the holder of Florida teacher's certificate number 129341, valid since July 1, 1971, certifying him in the areas of administrative supervision, science, physical education, and guidance. For a period of approximately sixteen years, he was employed with the School Board of Pinellas County. During the 1982-83 school year, respondent held the position of Dean of Students at Clearwater High School. He was dismissed from employment by the Pinellas County School Board on June 8, 1983. No evidentiary hearing has held prior to that dismissal, and respondent was not questioned by any member of the School Board regarding the acts giving rise to his dismissal. Some time in 1978, respondent met Marc Hayes for the first time at a hotel lounge in Clearwater Beach. Mr. Hayes told respondent that he was from Michigan and knew executives with automobile manufacturers who received vehicles from their manufacturer and were willing to sell such vehicles at a substantially reduced price. Respondent indicated that he would be interested in purchasing a luxury vehicle at a reduced price. At this time, no formal order was given by the respondent for a specific automobile, nor was any money exchanged. Respondent did advise Mr. Hayes of his place of employment and where he could be located in the event that Mr. Haves was able to find a vehicle that respondent might desire to purchase. Some time in 1979, Mr. Hayes brought a 1978 silver "anniversary edition" Corvette to Clearwater High School for respondent's inspection to determine if he would be interested in buying it. The odometer on the Corvette indicated that it had been driven approximately 10,000 miles. There was a slight tear in the driver's seat, the interior had been stained and had a bad odor, the right rear fender had been damaged and repaired, the mirror on the driver's side was cracked and the exterior paint had a rough finish. Nevertheless, respondent agreed to purchase the Corvette for $7,000 because he felt he would be receiving a good bargain. Mr. Hayes then went to respondent's home and received a down payment of $1,000 from the respondent. Respondent did not sign any contract or loan agreement reflecting the transaction, nor did he receive any title or other document from Mr. Hayes reflecting his ownership or interest in the vehicle. Respondent told Mr. Hayes that he would pay the remainder of the purchase price upon receipt of the title. Respondent made two or three other payments to Mr. Hayes. When he made his final payment, Mr. Hayes gave him a Michigan titled to the Corvette. The title had respondent's name on it with a Michigan address. After asking Mr. Haves why the former owner's name did not appear on the title, it was respondent's understanding that the executive selling the car might get in trouble with his company. The respondent had never before purchased a car in a private transaction and without third- party financing. After purchasing the Corvette, respondent obtained a Florida registration, secured a Pinellas County license tag, and had the car insured and inspected. He drove the vehicle on a daily basis over the course of the next three years and its appearance was never altered. On two occasions over this approximate three-year period, respondent was stooped by law enforcement officers and the Corvette's registration, license, and vehicle inspection number were checked. On both occasions, respondent was given no indication that anything was wrong with the car. One of these occasions was apparently due to the fact that respondent's ex-wife had reported to the police that the Corvette had been stolen. Respondent explained that this occurred after a domestic dispute with his then wife. When she said "With your luck, the car is stolen," he retorted "if my luck is as good as marrying you, it probably is stolen." Thereafter, she reported the car as stolen. During the early months of 1983, detectives with the Clearwater Police Department were involved in the investigation of an interstate stolen car ring. A Mr. Raymond Huntley was first arrested for arranging for the sale of stolen vehicles. Apparently, Mr. Huntley obtained the cars from Wade Clark, who is the brother of respondent Alphonso Clark. It was determined that the stolen cars were being delivered to Florida from Michigan through Marc Hayes. A check of police records revealed that Marc Hayes had been arrested in Pinellas County on December 31, 1982, for a traffic law violation while driving a 1982 Cadillac which was registered in the respondent's name. This was the first time in the ongoing auto theft ring investigation that respondent's name had been mentioned. After checking with the National Auto Theft Bureau, it was determined that the vehicle identification number on the Cadillac was invalid, and it was later determined that the Cadillac was a stolen vehicle. The Cadillac itself was never located by the Clearwater Police Department. While the Cadillac registration was not received into evidence in this proceeding, respondent admitted that it was registered in his name. He explained that Marc Hayes desired to have a car available to him in Florida, and requested respondent to keep the Cadillac at his home, use it when he wanted, but have it available for the use of Mr. Hayes or his friends when they were in Florida. Hayes suggested that the Cadillac be registered in respondent's name since respondent would also be driving it. Respondent had no knowledge as to the whereabouts of the Cadillac, but assumed that Mr. Hayes had taken it, as he had done on other occasions. After discovering that the stolen Cadillac was registered in the respondent's name, and after arresting respondent's bother, the respondent himself became a suspect in the auto theft ring investigation. The detectives learned that respondent owned a Corvette. After going to the parking lot of Clearwater High School and looking through the windshield on the driver's side, the detectives were able to obtain the vehicle identification number for the Corvette. Further investigation revealed a Florida registration in the respondent's name with the same identification number, but it was discovered that the number was an invalid identification number for the Corvette. The Corvette was thereafter placed under surveillance. After locating the car in an open, but wooded area across the street from the respondent's residence, the detectives ordered that the Corvette be seized, and it was towed away for the purpose of inspecting the confidential vehicle identification number. An examination of the back of the confidential identification number plate revealed that the numbers had been altered. After checking the true numbers, the detectives ascertained that the Corvette had been reported stolen in Michigan in 1978. When the respondent discovered that the Corvette was missing from the lot across from his home, he called the Indian Rocks Beach Police to inquire about it. Be also called the owner of the property upon which the car was parked. Respondent first learned that the Corvette had been impounded when three law enforcement officers came to talk to him at Clearwater High School on or about May 3, 1983. While two of the officers testified that respondent acknowledged during that May 3rd conversation that he knew the Corvette was "hot," respondent denies making such a statement. Respondent was arrested on May 3, 1983, and was charged with auto grand theft. During the criminal proceedings, the original owner of the Corvette testified that he bought the car in February of 1978. Its sticker price at that time was $12,124, but he was able to purchase it on a company discount for approximately $10,000. The Corvette was stolen from the Ford Motor Company parking lot in Dearborn, Michigan in November of 1978. After respondent's arrest, a newspaper article appeared in the St. Petersburg Times on May 5, 1983, reporting that respondent was "one of three deans responsible for disciplining students at Clearwater High," and had been arrested and charged with auto grand theft. The same article reported that respondent's brother and others had also been arrested and that one of the cars recovered was the Corvette respondent drives to school. Respondent's arrest also received other coverage by the news media. After the St. Petersburg Times article appeared, the principal of Clearwater High School, as well as one of the other dean of students, received many inquiries from parents, students and other teachers regarding respondent's arrest. While there was some student support for the respondent, most of the comments from parents were negative. They voiced concern over the propriety of one who is arrested for auto theft having the authority to discipline their children. Prior to the publicity surrounding respondent's arrest, the principal considered respondent an effective employee. By letter dated May 4, 1983, respondent was notified that the Superintendent of Schools was suspending him from his duties as of the close of the school day on May 4, 1983, as an emergency measure. By letter dated May 9, 1983, respondent was notified that the Superintendent would recommend to the School Board on May 25, 1983, that respondent be dismissed and his contract cancelled on charges of immorality and misconduct in office. Respondent was advised that he was entitled to a hearing, but that the request for a hearing had to be received by May 23, 1983. By Final Order dated June 8, 1983, the School Board noted that respondent's request for a public hearing was not received until May 25, 1983, found that respondent was guilty of immorality and misconduct in office and dismissed him from employment effective May 26, 1983. At a judicial hearing held on January 19, 1984, Circuit Judge Maynard F. Swanson of the Circuit Court for Pinellas County granted a motion to suppress the contents of the Corvette, including the confidential vehicle identification number. Judge Swanson found that at the time the vehicle was seized, the law enforcement officers did not have probable or reasonable cause to believe that the Corvette was stolen. The criminal case against the respondent was dismissed by Order dated October 15, 1984, and filed on October 31, 1984.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against respondent on May 18, 1984, be DISMISSED. Respectfully submitted and entered this 29th day of January, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1985. COPIES FURNISHED: Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Fla. 32301 L. Haldane Taylor 331 E. Union Street Jacksonville, Fla. 32202 Ronnie G. Crider 410 S. Lincoln Avenue Clearwater, Fla. 33516 Pamela L. Cooper 911 E. Park Avenue Tallahassee, Fla. 32202
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on September 26, 1986, and was issued certificate number 19- 86-002-03. At all times material to this case, the Respondent was a certified law enforcement officer working for the City of Miami Police Department. On June 18, 1989, the Respondent was assigned as a police officer on the day shift in the Patrol Division of the City of Miami Police Department and was assigned to Sector 20. Sector 20 encompasses a section of the city known as "Little Haiti." On that day the Respondent was working in uniform and was driving a marked City of Miami Police Department vehicle. While stopped at the corner of Miami Avenue and North 58th Street attending to paperwork, the Respondent observed an automobile and driver, both of which were similar to the description in a BOLO that he had issued earlier during his shift. The automobile observed by the Respondent was being driven by a person who appeared to be a Haitian male and who was later identified as Mr. Jerome Jean-Pierre. The Respondent observed the car driven by Mr. Jean-Pierre as it approached the intersection at a high rate of speed and as it slammed on brakes and ran a stop sign. The Respondent also observed the same car as it began to leave the scene in reverse at a high rate of speed. The Respondent activated his emergency lights and siren and gave chase. Mr. Jean-Pierre jumped out of his car and started running towards a dwelling. The Respondent jumped out of his police car and drew his handgun because he was concerned that Mr. Jean-Pierre might be armed. This concern came from the fact that Mr. Jean- Pierre appeared to be trying to conceal something in his waistband and also because the Respondent thought that Mr. Jean-Pierre might have been one of the participants in the armed robbery that resulted in the earlier BOLO. The Respondent followed Mr. Jean-Pierre into the dwelling. Inside the dwelling Mr. Jean-Pierre attempted to elude the Respondent. At one point the Respondent got close enough to Mr. Jean-Pierre to confirm that the latter did not have a weapon in his waistband. At that point the Respondent reholstered his own firearm, and called on the radio for back up. The Respondent then told Mr. Jean-Pierre that he was under arrest and ordered him to get down. Mr. Jean- Pierre refused to cooperate. Instead, Mr. Jean-Pierre punched the Respondent in the chest, whereupon a physical struggle began. Mr. Jean-Pierre attempted to flee by running into the bathroom and the Respondent made another radio call for assistance. Other officers arrived soon thereafter, and with the help of Police Officer Munoz, the Respondent attempted to handcuff Mr. Jean-Pierre. During this process, Mr. Jean-Pierre hit the Respondent repeatedly in the face. Police Officers Marshall and Wright also joined in the fight, during the course of which the Respondent was pushed through a glass shower door. During the course of the struggle, Mr. Jean-Pierre also struck the Respondent several times with a pair of handcuffs that were fastened to one of Mr. Jean-Pierre's hands and with a piece of non-metallic plumbing pipe. The struggle with Mr. Jean-Pierre was eventually moved out of the bathroom and into the kitchen. During the struggle in the kitchen area, while the Respondent was holding Mr. Jean-Pierre in a carotid restraint, Mr. Jean- Pierre lunged forward causing the Respondent to hit his shoulder on the door. At about the same time Mr. Jean-Pierre struck his head on the stove and while he appeared to be dazed, the police officers were successful in getting him down to the floor. Once on the floor, Mr. Jean-Pierre continued to struggle and resist. The officers eventually succeeded in getting handcuffs on both of Mr. Jean-Pierre's hands. Even after he was handcuffed, Mr. Jean-Pierre continued to struggle and thrash about and in the course of doing so he kicked the Respondent in the shin. Immediately thereafter the Respondent kicked Mr. Jean-Pierre once in the midsection in an effort to further control the arrestee and in an effort to dissuade the arrestee from further resistance. Mr. Jean-Pierre curled up for an instant following the kick and the Respondent took advantage of that reaction and picked him up and started leading him out of the house. Throughout the efforts to take Mr. Jean-Pierre into custody, the situation was dangerous and chaotic as a result of the conduct of Mr. Jean-Pierre. The Respondent and Mr. Jean-Pierre exited the building and walked to the Respondent's police car. During the walk to the car Mr. Jean-Pierre was still being generally uncooperative. At that time Mr. Jean-Pierre already had a visible cut on his head as a result of the struggles inside the house. When they got to the Respondent's police car, the Respondent laid Mr. Jean-Pierre down over the trunk of the car for the purpose of searching him before putting him inside the police car. While the Respondent was attempting to search Mr. Jean-Pierre, the arrestee suddenly raised himself up from the car trunk and stiffened his body. The Respondent's response to the arrestee's sudden action was to push the arrestee back down over the trunk of the car until he finished his search of the arrestee's pockets. The Respondent did not slam the arrestee's head onto the car when he pushed him back down onto the car. The arrestee's face may have come into contact with the car trunk or with the car rear window area, but the arrestee's head did not strike any portion of the car with any significant force. The force the Respondent used to push the arrestee back down against the car was reasonable under the circumstances and was necessary to maintain control over the arrestee. The act of leaning an arrestee over the trunk of a car for the purpose of searching the arrestee was a police procedure approved by the City of Miami Police Department. When arrestees use physical violence in the course of efforts by police officers to arrest them, arrestees are sometimes injured even in the absence of misconduct by the arresting police officers. During the course of the struggle with Mr. Jean-Pierre, the Respondent received numerous scratches and bruises, his uniform became torn, his watch and glasses were broken, and he was, in general, substantially beaten up. The severity of the injuries he received was such that the Respondent missed three weeks of work immediately following the struggle with Mr. Jean-Pierre. The only evidence of injury to Mr. Jean-Pierre was a small cut on his forehead, as shown on Respondent's Exhibit 5, which cut resulted from the activities inside the house before Mr. Jean-Pierre was taken to the Respondent's car.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 10th day of November, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 10th day of November, 1993 APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3102 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in substance. Paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17: There is a great deal of conflict in the evidence in this case with regard to what happened at several points along the way in the handling of the arrestee, Mr. Jean-Pierre. To the extent that the version of the facts set forth in these paragraphs conflicts with the version of the facts offered by the Petitioner, the Hearing Officer has, for the most part, accepted the version of the facts set forth by the Respondent. Accordingly, to the extent of such conflict, the assertions in these paragraphs are rejected. Paragraph 18: Accepted in substance. Paragraphs 19, 20 and 21: There is a great deal of conflict in the evidence in this case with regard to what happened at several points along the way in the handling of the arrestee, Mr. Jean-Pierre. To the extent that the version of the facts set forth in these paragraphs conflicts with the version of the facts offered by the Petitioner, the Hearing Officer has, for the most part, accepted the version of the facts set forth by the Respondent. Accordingly, to the extent of such conflict, the assertions in these paragraphs are rejected. Paragraphs 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraphs 26, 27, 28, 29, and 30: Rejected as contrary to the greater weight of the persuasive evidence. Paragraphs 31 and 32: Rejected as irrelevant in view of the finding that the Respondent did not slam anyone's head on the trunk of the car. Paragraph 33: Rejected both as constituting a summary of testimony and as constituting opinions that are not warranted by the persuasive evidence. Paragraphs 34 and 35: Rejected as subordinate and unnecessary details in view of how the conflicts in the evidence have been resolved. Paragraphs 36, and 37: Rejected as subordinate and unnecessary details and also rejected as contrary to the greater weight of the evidence or as suggesting inferences not warranted by the greater weight of the evidence. Paragraph 38: Accepted that the Respondent kicked the arrestee inside the house, but the quoted portion of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraphs 39 and 40: Rejected as subordinate and unnecessary details. Paragraph 41: Rejected as comprised primarily of argument, rather than proposed findings of fact. Paragraph 42: Rejected as comprised primarily of argument, rather than proposed findings of fact. Also rejected as being contrary to the Hearing Officer's resolution of the credibility conflicts. Paragraph 43: Rejected as subordinate and unnecessary details. Paragraphs 44 and 45: Rejected as comprised primarily of argument, rather than proposed findings of fact. Also rejected as being contrary to the Hearing Officer's resolution of the credibility conflicts. Paragraph 46: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17: Accepted in substance, but with a number of subordinate and unnecessary details omitted. Paragraphs 18, 19, 20, 21, 22, 23, and 24: Rejected as constituting summaries of conflicting testimony and argument about which version is most believable. No useful purpose is served by summarizing all of the conflicting evidence. Paragraph 25: Rejected as subordinate and unnecessary details. Paragraphs 26, 27, and 28: Accepted in substance. Paragraph 29: Accepted in substance with the exception of the reference to kicking. Paragraphs 30, 31, 32, and 33: Rejected as subordinate and unnecessary details. Paragraphs 34, 35, 36, 37, 38, and 39: Accepted in substance. Paragraphs 40, 41, 42, 43, 44, 45, 46, and 47: Rejected as constituting summaries of conflicting testimony and argument about which version is most believable. No useful purpose is served by summarizing all of the conflicting evidence. Paragraphs 48, 49, and 50: Rejected as subordinate and unnecessary details. Paragraph 51: Rejected as constituting summaries of conflicting testimony and argument about which version is most believable. No useful purpose is served by summarizing all of the conflicting evidence. Paragraphs 52, 53, 54, 55, 56, and 57: Rejected as subordinate and unnecessary details. Paragraphs 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, and 71: Accepted in substance. Paragraph 72: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Monica A. White, Esquire Robert D. Klausner, Esquire Department of Law Enforcement Klausner & Cohen, P.A. Post Office Box 1489 6565 Taft Street, Suite 200 Tallahassee, Florida 32302 Hollywood, Florida 33024 James T. Moore, Commissioner Michael Ramage, General Counsel Florida Department of Law Florida Department of Law Enforcement Enforcement Post Office Box 1489 Post Office Box 1489 Tallahassee, Florida 32302 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent, R.H. Motors, d/b/a Kia of Orange Park ("Kia"), discriminated against Petitioner, Lamar B. Waters ("Waters"), on the basis of age in derogation of the Florida Civil Rights Act of 1992.
Findings Of Fact Waters is a 71-year-old Caucasian male who resides in Green Cove Springs, Florida. At all times pertinent hereto, Waters was employed by Kia at its automobile dealership in Orange Park, Florida. By all accounts, Waters was extremely well liked at the dealership. He had a jovial personality and got along well with his co-workers. He was generally seen as a nice, retired man with ample financial wherewithal to enjoy life. Waters himself says that he is financially comfortable, but does not consider himself rich. He lives in a nice house that is valued at around $900,000 (or was at the time he purchased it). He owns a nice boat that some fellow employees have used for parties and gatherings. Waters is a college football fan and enjoys spending time watching and attending games, especially for his favorite team, the Georgia Bulldogs. In 2013, Waters filed for bankruptcy, but for the purpose of working out a deal on his home mortgage, not--apparently--due to significant financial problems. Waters often said that he was financially sound and was working “only to get away from his wife,” but that may have been in jest rather than serious. Kia is a dealership which sells both new and used automobiles. It has been in existence since August 2008. It is owned by R.H. Motors, a Florida corporation. The vice president of operations for R.H. Motors is Robert Hogan. The dealership, including the car lot, offices, and service department, is located on a large tract of land in Orange Park. The new car section of the dealership is located on a large lot which includes the office building and service area. Across from the new car section there is a smaller lot which was initially used for selling used cars. There is a mobile home or modular building on the used car lot which is used as an office. Waters joined the U.S. Navy at age 17; he later entered flight school with the U.S. Army. He served time in Vietnam during the conflict with that country. Waters was honorably discharged from the service in 1975. He took a job flying airplanes for AFLAC (or its predecessor company) and later became a general manager for the company. Waters retired from AFLAC in 2004 and then went to work for a Volkswagen dealership in Orange Park, Florida. He worked as a floor salesman for the Volkswagen dealership. In November 2009, when Waters was 66 years old, he was offered a job at Kia. He accepted and started work on December 1, 2009, as a floor salesman, selling new and used cars. Waters had been hired by Joe Esposito, the general manager for Kia at that time. Waters was compensated at minimum wage plus commission on cars he sold. While he was a salesman, Waters would take off from work either Tuesday or Thursday of each week and every Sunday. In June 2010--or thereabouts--Waters was offered a different position at Kia. Waters described the position as the “wholesale manager” for the dealership. He said his duties included buying and selling cars at auctions. He also managed the used car lot, did appraisals for cars being traded in, and continued to sell cars. In April 2013, general manager Esposito placed Waters on indefinite leave due to “internal issues” at the dealership. In May 2013, Esposito asked Waters to attend a class on managing customers. The class was to be held at Kia’s primary headquarters in South Carolina. Waters and another employee traveled to South Carolina, but there was no training provided. An employee at headquarters talked with the two men briefly, but there were no classes or training. Waters had understood the reason he was sent to South Carolina was so that he could be assigned a new job as some kind of customer manager. There was obviously some disconnect between what Waters was told and what he understood to have been said. When Waters returned from South Carolina, he found that Esposito had been fired as the general manager at Kia. Waters somehow met with Robert Hogan (described by Waters as "the owner") when Hogan came to visit the dealership even though Waters was supposedly on indefinite leave at that time. When Hogan found out Waters had been placed on leave by Esposito, he immediately reinstated Waters and made sure he was paid back-pay for the time he was out of work. At that time, Hogan also asked Waters to manage the used car side of the dealership. Waters remembers that he was hired as the Used Car Manager. Hogan says he was hired as the Budget Car Manager, i.e., that Waters was only to be responsible for selling the least attractive used cars. Those cars generally came onto the lot as trade-ins by persons purchasing new vehicles. Waters said that as part of this new job, he was tasked with going to auctions for the purpose of obtaining additional used cars for the Kia dealership. Hogan said Waters was never authorized to purchase cars for the dealership, and that the dealership already had too many used cars. No additional testimony was provided to rectify this disparity. Either one of the witnesses was not telling the truth or Waters was mistaken about his duties. A brief explanation of the dealership is warranted: Kia sells both new and used cars. Used cars come from various sources, including trade-ins by customers buying new cars, purchases from rental car fleets, and purchases from auctions. The used cars were for a time sold from a lot adjacent to the main Kia lot. Later, Kia moved all used cars over to the same lot with the new cars. The used car lot was then used as a place to store new car inventory. When Waters was reinstated to his job and began working with used cars, a new general manager--Mr. Record--had been hired. Record was instrumental in the change that moved all used cars over to the new car lot. He was also very harsh and unfriendly with employees at the dealership, so Hogan eventually fired him as general manager as well. He was replaced by Jeff Norman. Norman continued the practice of keeping all the cars, new and used, on one lot--except, it appears, for the cars deemed "budget" cars. Norman also took over some of Waters’ tasks and responsibilities, e.g., Norman began doing the appraisals of used automobiles. Norman also took over the acquisition of used cars, although Waters would sometimes disagree with the choices Norman made. Norman told Waters a new policy of Kia was to get rid of the budget cars as quickly as possible rather than trying to repair them for higher re-sale. At some point in time after Waters had been reinstated to his job, Hogan began to have concerns about the number of hours the used car lot office was being manned. He expected that office to be open whenever the main lot office was open, i.e., from 9:00 a.m. until 10:00 p.m. Hogan had called and/or gone by the used car lot on numerous occasions around 5:30 p.m. or 6:00 p.m. in the evening and found it closed. Hogan raised his concerns about Waters’ work schedule with the new GM, Norman, and asked him to talk to Waters, get him back on track, and tell him what was expected of him as an employee of Kia. Norman called Waters into his office on October 16 or October 17 (the date is in dispute) to discuss the matter. Norman told Waters that things were changing at Kia. He said the dealership would be trying to sell 250 cars a month. To do that, employees were going to be expected to work long, 12-hour days, six or even seven days a week. Norman allegedly asked Waters how old he was, and then said Waters was about the same age as Norman’s father. Norman allegedly told Waters that the dealership did not want to put him under that kind of stress. Waters told Norman he would not like the proposed new work schedule and hours. Norman allegedly told Waters that he (Norman) was worried that a man Waters’ age could not stand the stress of working those hours.1/ Waters took Norman’s words to mean, in essence, that Waters was being terminated from employment. He replied to Norman only, "I appreciate it," and walked toward the door. As he was exiting, Norman said that he would check with the sister Kia dealership in the Southside area of Jacksonville to see if they had any sales positions open. Waters apparently did not accept that offer. After the meeting with Norman, Waters went to his desk and gathered his personal belongings. He went back into the dealership and said goodbye to Hutchinson, the young office manager who had been friendly to Waters during his tenure at Kia. Waters hugged Hutchinson, said "I’m out of here," and indicated that he did not want to work on weekends. He then left the premises.2/ On the 17th day of October, Hutchinson was instructed to fill out a Separation Notice to reflect Waters’ cessation of employment at Kia. The reason given on the form for Waters’ leaving was "Voluntary [sic] Quit." Waters’ term of employment was listed as December 1, 2009 through October 17, 2013. Waters’ work schedule was listed as 9:00 a.m. until 10:00 p.m., seven days a week. Hutchinson said that is simply a statement of when the store is open; each person works the hours necessary to get their job done. In the description of Waters in the Separation Notice, Hutchinson wrote, "Great company guy. None better." There is not dispute that Waters was a well-liked person at the dealership. Waters did not see the Separation Notice until it was sent to his attorney in preparation for final hearing. Waters disagrees with the date of the notice, the work hours listed, and that he voluntarily quit his job. On October 1, 2013, just two weeks before leaving Kia, Waters had been given a raise from $1,500.00 per month, plus 5% of profits generated by the used car department, to $4,000.00 per month plus 5% of the profits. Waters did not contact Hogan to inquire as to whether something could be worked out concerning his continued employment. Hogan had been exceptionally nice to Waters in the past, but Waters did not pursue relief with him. Hogan remembers trying to contact Waters once via telephone but never talked to him about the matter. As far as Hogan is concerned, Waters voluntarily terminated his employment with Kia because he did not want to work the hours needed. Hogan had hired Waters at age 66 and did not have any objection to Waters working for as long as he felt healthy enough to do so. After he left his employment with Kia, Waters has sought but been unable to locate another management job. He has no interest in going back into a sales position. No testimony or evidence was presented at final hearing as to whether Waters’ position with Kia was filled or, if so, whether a younger person was hired to replace him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Lamar B. Waters, by Respondent, R.H. Motors, d/b/a Kia of Orange Park. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 30th day of October, 2014.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers. Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. DONE and ENTERED this 25th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO CASE NO. 90-0919 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 and 2 are accepted. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant. Paragraphs 4, 5, and 6 are rejected as irrelevant. It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested. Paragraph 7 is rejected as contrary to the weight of the evidence. The victim complied with Respondent's directive to enter the police vehicle. Paragraphs 8 through 12 are accepted. Paragraph 13 is rejected as contrary to the weight of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8. Paragraph 14 is rejected as contrary to the weight of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim). The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 20 is accepted. Paragraph 21 is accepted. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as contrary to the weight of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible. Paragraph 24 is rejected as contrary to the weight of the evidence. See, however, finding of fact paragraphs 10 and 17. Paragraphs 25 and 26 are rejected as irrelevant. Paragraphs 27 through 32 are accepted. Paragraphs 33 through 36 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. Respondent submitted a written closing argument. Copies to: Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rashad El-Amin Attorney at Law 4300 S.W. 92 Davie, Florida 33328
Findings Of Fact At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing. When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda. Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit. In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance. With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car. During the chase Vayda had no information to lead him to believe suspect was other than a speeder. As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol. Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977. Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The ultimate issue to be resolved in this proceeding is whether the Respondent violated provisions of the Department of Law Enforcement Act of 1974, and if so, what disciplinary action is appropriate. Petitioner contends that the Respondent has engaged in acts which demonstrate that he has not maintained good moral character, and that his certification as a law enforcement officer should be permanently revoked.
Findings Of Fact The Respondent holds a certificate issued by the Criminal Justice Standards and Training Commission as a law enforcement officer. The certificate was issued in February, 1976. The Respondent was then employed with the City of Bunnell Police Department. The Respondent was a police officer with that department for a period of time, and was ultimately named Chief of Police. The Respondent is not presently employed with the Police Department in Bunnell, and is apparently not employed in the law enforcement field. During the time that he was employed as Chief of Police with the City of Bunnell Police Department, the Respondent engaged in immoral and illegal activities which included the use and distribution of marijuana, utilizing the services of prostitutes, and possession of moonshine whiskey. On at least two occasions, the Respondent delivered marijuana, apparently without charge, to a resident of Bunnell. On one of these occasions the Respondent was dressed in his police uniform, and made the delivery from his police car. Respondent smoked marijuana cigarettes with several residents of Bunnell. Respondent visited a house of prostitution in Daytona Beach with these same persons. The Respondent was observed haggling over price, and entering a private room with one of the residents of the house. On several occasions the Respondent openly displayed to his associates, a jar of what appeared to be moonshine whiskey, and what the Respondent stated was moonshine whiskey. The Respondent told an employee of the Flagler County Sheriff's Department, and an employee of the City's Corrections Department, that he had made the moonshine. In late 1978 or early 1979, approximately two pounds of marijuana was seized by officers of the Flagler County Sheriff's office. Four men who were apparently illegal aliens were arrested, and the marijuana and other matter were seized and placed in the vault at the Flagler County jail. The next day, the arresting officer returned to the vault in order to properly mark the marijuana as evidence. The Respondent had removed the marijuana from the vault. Respondent stated that he had disposed of it in a creek. Even if the Respondent did dispose of the marijuana in that manner, which is not a believable explanation, such action would be an improper manner of dealing with evidence that had been seized by law enforcement officers of another agency. While he was a police officer and Chief of Police with the City of Bunnell Police Department, the Respondent on several occasions disposed of stray dogs by shooting them and leaving their bodies in a creek. The Respondent apparently considered it easier and cheaper to dispose of stray dogs in this manner rather than taking them to an animal shelter. It is clearly an improper means of disposing of stray animals. While the Respondent was Chief of Police with the City of Bunnell, an officer with the Police Department advised the Respondent that he had observed gambling occurring at a tavern. The Respondent advised the officer to take no action regarding the matter as it was not a big deal and no one was complaining. The Respondent's actions, which include use of marijuana, prostitutes, and moonshine whiskey, illegally disposing of evidence and illegally shooting stray dogs, clearly demonstrate that the Respondent failed to maintain good moral character. His actions would inevitably have the effect of creating bad morale at the Police Department in the City of Bunnell and his actions did have that effect. It was alleged in the Complaint that the Respondent had marijuana that he kept in his closet at his home. This allegation was supported at the hearing by the testimony of a former baby sitter of the Respondent. The testimony has not been credited, and the allegation therefore has not been proven. It was six years ago that the baby sitter witness observed what she testified was marijuana, and she was at that time eleven years old. What she stated was marijuana was not identified by any other person. It was alleged in the Administrative Complaint that the Respondent observed an illegal drug transaction in process and failed to take any action with respect to it. These allegations are not supported by any credible evidence.
The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, 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 this case are whether Respondent, Jean M. Duterne (Respondent), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and licensing security officers within the State of Florida. See §§ 493.6101(1) and 493.6118, Fla. Stat. (2010). At all times material to the allegations of this case, Respondent held Security Officer License D 2526539 (D-license) and Statewide Firearms License G 2800118 (G-license). Prior to being licensed, Petitioner went through security officer training. To that end, Petitioner has read and asserts he understands Chapter 493, Florida Statutes (2008). Respondent was on-duty working as an armed security guard at the JMS Hotel (the hotel), located at 21601 32nd Street, South, St. Petersburg, Florida, on August 20, 2008. Respondent was involved in an incident in the hotel’s parking lot that resulted in police responding to the property. Respondent provided information to police at or near the time of the incident on August 20, 2008. On August 20, 2008, Respondent responded to a call to investigate a possible credit card theft in Room 166 of the hotel. When he presented at the room, Respondent observed a woman sitting in a car parked adjacent to the room and another woman loading items into the car. When Respondent attempted to speak to the woman inside the car, she started the engine and began to exit the property. At that time, Respondent reached into the vehicle and attempted to remove the key from the ignition. It was Respondent’s intention to detain the woman to determine what she was doing. Contrary to Respondent’s effort, the vehicle began to pull away, and Respondent hurriedly pulled himself from harm’s way and stepped back away from the vehicle. In the excitement of the moment, Respondent drew his 9 mm semi-automatic pistol and discharged it, in an effort to hit the tire of the exiting vehicle. Respondent did not hit the tire. It is unknown what, if anything, was struck by the bullet discharged. Respondent’s G-license expired on June 2, 2010. Respondent’s D-license is still valid. The course Respondent took to obtain the G-license required a 28-hour course taught by a state-licensed instructor. The course training includes a manual that contains scenarios for licensees to consider as examples of when one should retreat from potentially dangerous situations. Generally, licensees should avoid using deadly force (equivalent to discharging a firearm) whenever possible. Only under limited situations should a licensee discharge a weapon. To further explain and provide guidance for the use of deadly force, the manual sets forth the following examples: Situation #1 You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus increasing the probability of armed conflict. The man is running away from you and there is no threat of death or great bodily injury. Don’t shoot. Situation #2 You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well- marked security vehicle, you observe the suspects’ vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver’s side of the suspects’ vehicle and almost simultaneously the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don’t shoot. Record license number and description of vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. Respondent created the incident in this case by reaching into the vehicle. Had he used the methods outlined in the manual, Respondent would have responded to the room, contacted police with the information concerning the description of the car and its occupants, and followed up by determining whether a theft had occurred. Instead, by injecting himself into the car and attempting to remove the ignition key, Respondent could have easily been injured. Even so, such an injury would not have supported the discharge of Respondent’s weapon in a location where others could have been injured. This is especially true in light of the fact that the vehicle was pulling away from Respondent and not toward him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Division of Licensing, enter a final order denying the renewal of Respondent’s G-license and placing Respondent’s D-license on probation with such additional terms as the Department might deem appropriate. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 1st day of December, 2010. COPIES FURNISHED: James A. Thomas, Esquire 334 South Hyde Park Avenue Tampa, Florida 33606 Tracy Sumner, Esquire Division of Licensing Division of Agriculture and Consumer Services 2520 North Monroe Street Tallahassee, Florida 32301 Constance N. Crawford, Director Division of Licensing Division of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168
