The Issue The issues in this proceeding are whether the Petitioner has violated provisions of Florida Statutes relating to the certification of police officers as alleged in the Administrative Complaint, and, if so, what penalty should be imposed by the Commission.
Findings Of Fact The Respondent is certified with the Criminal Justice Standards and Training Commission as a law enforcement officer. He holds Certificate No. 02- 16422. From approximately March, 1976, until August, 1981, the Respondent was employed with the City of Orlando as a police officer. On or about August 11, 1981, the Respondent was on duty as a uniformed police officer during the midnight shift. He was riding in a patrol car with another officer. The two officers observed a pickup truck in a parking lot with a white male in the driver's seat and a black woman in the passenger's seat. The Respondent identified the woman as a "known prostitute." The officers drove into the parking lot to investigate. The woman jumped out of the truck. She had a gun in her possession. The two officers successfully apprehended her. In the meantime, the driver of the truck had wandered away. The other police officer left the area, looking for the man. It took the other officer approximately five minutes to apprehend the man, who was quite intoxicated. During this time, the Respondent was alone with the woman. She appeared intoxicated or drugged. She inferred that Respondent should release her, unzipped his pants, and grabbed his penis. Respondent wanted to make a case against her on this basis. He called out to his partner in an effort to get his attention to come witness the incident, but was unable to reach him. Respondent withdrew from the woman and came to the conclusion that he could not make a case against her for the incident because of the lack of an additional witness. Approximately a year before this incident, Respondent was working in uniform as an off-duty policeman at a lounge. He met the same woman involved in the later incident. After he finished his duties and changed clothes, he had a sexual encounter with her. The encounter was not an act of prostitution. On August 11, the Respondent arrested the woman for being a felon in possession of a firearm. The next morning, the woman complained that the Respondent had agreed to do something about the arrest if she performed oral sex on him. An investigator with the police department's Internal Affairs Division interviewed the woman. The investigator then interviewed the Respondent. At the initial interview, the Respondent denied ever having had a sexual liaison with the woman. Two days later, the Respondent contacted the investigator and said he remembered some additional facts. In a second interview, the Respondent admitted having had sex with the woman on the earlier occasion. He continued to deny having had sex with her on August 11, 1981. He conceded, however, that she may have touched him in the area of his genitals while pleading for him not to arrest her. Later on that same day, the Respondent again contacted the investigator and said that he had more to say. A third interview was conducted, and the Respondent admitted that the woman committed the act as set out in Paragraph 2 above. During this time, the Respondent was experiencing personal difficulties. His contradictory statements to the investigator were in part the result of anxieties about his job and his personal life. The State Attorney's Office in Orange County ultimately declined to prosecute the possession-of-a-firearm case against the woman on account of the potential embarrassment that the Respondent's testimony could have. The Respondent's employment with the police department of the City of Orlando was terminated in August, 1981. He has not been employed in the law enforcement field since that time.
The Issue The issues for determination are whether Respondent, Lonnie Evans, violated section 112.313(6), Florida Statutes (2008), by misusing his position by using the Chief of Police's city-owned vehicle for campaigning, and if so, what penalty should be imposed?
Findings Of Fact Lonnie Evans served as mayor of the City of Coleman for twelve years. Prior to his service as mayor, he was on the City Council for 24 years. Frank Moore was an officer with the City of Coleman Police Department prior to Lonnie Evans' first election as Mayor, and became the Coleman Chief of Police at some point after Evans' first election as mayor. Chief Moore retired in 2010, but remains employed by the City of Coleman as a reserve officer. Respondents Moore and Evans were, at all times relevant to this proceeding, subject to the requirements of chapter 112, part III, Florida Statutes, otherwise known as the Code of Ethics for Public Officers and Employees. Lonnie Evans ran for re-election as mayor in 2008, and was defeated by Eve Carruthers. The election was held on December 8, 2008. Coleman is a small town in Sumter County, Florida, with approximately 600 residents and 200 registered voters. Because of the size of the community and the nature of their jobs, Frank Moore and Lonnie Evans know each other fairly well, and are, in turn, well-known in the community. At the time relevant to this case, the police department in the City of Coleman consisted of three officers: the police chief, one additional full-time patrol officer, and one reserve officer. During at least part of the time relevant to these proceedings, the full-time patrol officer was James Dingle. On December 9, 2009, an Order Finding Probable Cause, which forms the basis for DOAH Case No. 10-1284, was filed by the Commission on Ethics. The Order Finding Probable Cause was based upon a complaint filed by James Dingle against Police Chief Moore regarding the 2008 election campaign several months after his employment was terminated by the Coleman City Council. The probable cause finding was reported in a local newspaper in January of 2010. Cynthia Martin, a City of Coleman Council member, showed the newspaper article to Timothy Bronson. Ms. Martin had run against Lonnie Evans in a previous election for mayor, and lost. As a result of Ms. Martin's encouragement, Timothy Bronson filed a complaint with the Commission against Lonnie Evans on March 3, 2010, fifteen months after the last election in which Mr. Evans was a candidate (COE Complaint No. 10-043). The complaint stated that the mayor and the chief of police had, for each election, come to the Bronson house and asked he and his mother to vote for Mayor Evans. The complaint indicated that Chief Moore had stated that if Evans was elected, then he would get to keep his job. The mayor of Coleman does not have the authority to hire or fire the police chief. Only the city council can take that action. Frank Moore continued to serve as police chief for the City of Coleman for well over a year after the election, until sometime in 2010, when he retired. Timothy Bronson and his mother, Gloria Bronson, claimed that Chief Moore would drive by their home and pull into their driveway. They would come out to the fence and speak to him. From their position on the other side of the fence from the car, they claimed that, on one occasion, they could see campaign signs for Lonnie Evans in the back floorboard of the patrol car. Timothy Bronson also testified that on one occasion, Lonnie Evans was in the patrol car with Chief Moore, and asked his mother to vote for him. Mrs. Bronson did not testify to any such request by Lonnie Evans, and testified that when Frank Moore came to the house, Lonnie Evans was not with him. In his taped interview, Timothy Bronson recalled that Chief Moore was driving a white unmarked car, but at hearing insisted that the car Chief Moore drove on these occasions was gray. Mrs. Bronson testified that the car was either white or "brownish." Chief Moore acknowledged that he sometimes drove by the Bronson home, usually in response to a complaint by Mrs. Bronson, such as people speeding on her street. He agreed that he sometimes stopped and spoke to her and her son, but denied talking about the mayoral race. He also flatly denied ever having Lonnie Evans in his patrol car at the Bronson home. The patrol cars have dark tinted windows in the back, and the view is obstructed by both the tint and the barrier separating the front and back seats. It is unlikely that either of the Bronsons would be able to see signs in the floorboard of the backseat from a location on the other side of the fence from the car. Mrs. Bronson admitted at hearing that she suffers from short-term memory loss as a result of a medical event. On April 14, 2010, Lucy Burnette also filed a complaint against Lonnie Evans with the Commission on Ethics. In her complaint (Ethics Complaint 10-074), she claimed that Mayor Evans came with Chief Moore, in the police car while Chief Moore was in uniform, to the local fruit stand and asked her to vote for him. Ms. Burnette did not file a complaint against Chief Moore. The complaint was written out by Cynthia Martin, while Ms. Burnette volunteered at the fruit stand. She acknowledged at hearing that some of the statements contained in the written statement were not true, and she wished that she had read the statement more closely before she signed it. For example, the statement in her complaint that "the former mayor asked me to vote for him while he was with the chief of police, in uniform" was not true. According to Ms. Burnette, Mr. Evans did not get out of the car and did not speak to her. Ms. Burnette testified that Chief Moore and Mayor Evans came to the fruit stand in a gray city police car. Mayor Evans was in the passenger seat. Chief Moore got out of the car, according to Ms. Burnette, and told her she needed to talk to Mayor Evans about what she wanted and she could possibly get it. The only indication as to when this incident supposedly occurred was that it happened just before the 2008 election. Ms. Burnette had an ongoing issue with the City of Coleman over her attempts to run a deli or barbeque on her property. At one point, while she claimed she was not a resident of Coleman, Chief Moore had been directed to "shut her down." She claimed that she wanted, but did not need, a license to operate, and that Chief Moore told her to talk to the mayor and he could help her get the license she sought. Although the record is unclear, it appears that her licensure problem exists because her property is not zoned for commercial use, and that in order for her to get a license, she would have to seek a variance from the city council. In any event, Mayor Evans does not issue licenses or direct them to be issued. While he may have had some influence on the decision- making process, the comment made by Chief Moore, if in fact he made it, made no reference to the election or voting for Mayor Evans. Ms. Burnette simply made the assumption that Chief Moore was implying that a vote for Mayor Evans would help Ms. Burnette's efforts to receive a license. She even referred to Chief Moore's statement as some sort of bribe by Mayor Evans, delivered through Chief Moore. Chief Moore often stopped by the fruit stand on his way home from work to buy some fruit. Lucy Burnette often complained to him about her problems related to getting a license when he stopped by. He testified that he told her, on more than one occasion, that she should talk to Mayor Evans or members of the city council about her problem, but did not talk to her about the election or ask her for votes. His testimony is credited. Lucy Burnette's written complaint indicates that there were witnesses to Chief Moore and Mayor Evans coming to the fruit stand in the police car. Investigator Maolli from the Commission on Ethics was unable to locate any witnesses to corroborate her account. On April 14, 2010, Ronnie Owens filed complaints with the Commission on Ethics against both Chief Moore and Mayor Evans (COE Complaint Nos. 10-075 and 10-076). According to Mr. Owens, Cynthia Martin approached Mr. Owens and told him about "the election thing," and asked him if he saw Chief Moore and Lonnie Evans in the car together. She asked him to file complaints with the Commission on Ethics, and actually wrote out the complaints for him to sign. Prior to Ms. Martin approaching him, Mr. Owens was not aware that there was any problem with the mayor and the police chief campaigning while on duty. He admitted that he filed the complaints after he had a "run-in" with Chief Moore over an incident that took place at a local store. The City of Coleman is bisected by a railroad track. Residents living in the neighborhood on the west side of the track are predominately African-American. This area of the town is sometimes referred to as "the quarters." It is not unusual for some residents of the quarters to sit at a table in a lot on the corner, or on someone's front porch, and play cards or dominos. Mr. Owens claims that prior to the election, he and some other men were sitting at Mr. Robert T's house playing dominos. Mayor Evans and Chief Moore drove up in the gray Crown Vic and walked over to the men, and Chief Moore asked them to support Lonnie Evans in his election. One of the men asked Evans for a campaign sign, and Evans indicated he did not have any with him, but would bring one back. Mr. Owens testified that Lonnie Evans later returned, in his truck, and gave a campaign sign to one of the men. Mr. Owens stated that there were five men present when Mayor Evans and Chief Moore came by the quarters. None of the other men testified at hearing, and Investigator Maolli was unable to find any who could corroborate that Evans and Moore came to the quarters in the police car while Moore was in uniform. Each incident reported by the Bronsons, Ms. Burnette, and Mr. Owens involved the use of a city-owned police car while campaigning. The City of Coleman owns three police cars: a marked patrol car, a white Crown Victoria, and a gray Crown Victoria. The passenger compartment of the police cars contains a computer, printer, video system, radar unit, and other equipment. By necessity, this equipment takes up space not normally filled in a regular vehicle. The City Council had approved Chief Moore's use of a car as a "take home" vehicle, and he used the white Crown Victoria almost exclusively. He drove the white police car back and forth to work from his home in Cedar Hill. He testified credibly that he was allowed to make stops in the city car, for example to pick up a grocery item, on his way to and from work. It was not permissible to use the car for personal entertainment or trips. Chief Moore also drove his personal car, a Buick Lucerne. Lonnie Evans stopped driving, at the urging of his wife and son, by either September or early October of 2008, because of his declining eyesight. As a consequence, he did not drive during the 2008 campaign. He was driven to campaign by his wife, Carolyn, in their red Jeep SUV, by a member of the City Council and former postmistress Vergie Everett (who passed away in February of 2010) in her Cadillac, or on one occasion, by Chief Moore in his privately-owned Buick. Both men testified credibly that when Chief Moore drove Mr. Evans, it was on a weekend and Chief Moore was dressed in jeans and a t-shirt. It is doubtful that Lonnie Evans would have returned to the quarters driving his own truck, as Mr. Owens testified. It is more likely that when he campaigned, he was being driven by his wife in their SUV, and that he took the campaign sign out of the back of the SUV. Both men also testified that there was one occasion when Lonnie Evans rode in the front seat of the white police car while it was driven by Chief Moore. A benefit was held to help Cleveland Williams, a former member of the city council, who had become disabled. After the benefit, the proceeds were counted at City Hall and placed in an envelope for delivery. Mayor Evans accompanied Chief Moore to deliver the funds raised at the benefit. The two men rode past the location in the quarters where the men played dominos on their way to Mr. Williams' home, but did not stop. Because of the amount of equipment and the "accumulated mess" in the police car, Mayor Evans found it exceedingly uncomfortable and was emphatic that he would not repeat the experience. With the exception of one of the men in the quarters requesting a sign, there is no claim that at any time signs or flyers or campaign literature of any kind were distributed to any of the complainants. Based on the totality of the evidence presented, there is not clear and convincing evidence that Mayor Evans or Chief Moore ever used a city vehicle to campaign during the December 2008 election.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report finding that no violation of section 112.313(6) has been demonstrated. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 16th day of February, 2011.
The Issue The issue is whether Petitioner’s application for a license from the Florida Real Estate Commission was properly denied.
Findings Of Fact Petitioner, his Background, and the Application Leroy L. Baines, Jr., was born on October 31, 1985. Currently 29 years old, he is employed with a financial services company. He serves on the board of a non-profit organization called Butterfly Foundation Group. The organization works with underprivileged and at-risk youth. He also works with J.J.’s Boxing Club and Global Village, both non-profit entities. In 2005, Mr. Baines pled no contest to a criminal traffic infraction: operating a motor vehicle without a valid license (“Criminal Traffic Infraction No. 1”). He was adjudicated guilty and sentenced. Respondent’s Ex. No. 1 at 00028. The following calendar year, 2006, Mr. Baines was convicted of driving while his license was cancelled, suspended, revoked, or he was disqualified from holding a license (“Criminal Traffic Infraction No. 2”). Id. at 00022. In 2008, in the U.S. District Court for the Southern District of Florida, Mr. Baines pled guilty and was adjudicated guilty of two federal crimes: 1) conspiracy to interfere with interstate commerce by robbery, and 2) carrying a firearm during and in relation to a crime of violence (the “Federal Criminal Offenses”). Id. at 00013. Mr. Baines was sentenced to 55 months imprisonment for the Federal Criminal Offenses on June 18, 2008. He served his sentence in prisons located in Florida, Texas, and North Carolina. His sentence expired on June 30, 2014, and he was discharged from supervision on September 3, 2014. Id. at 00040. On April 11, 2014, Respondent received Mr. Baines’ application for licensure as a real estate associate (the “Application”). He answered “Yes” to Background Question 1, which asks, “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction . . . ?” Id. at 00010. After the background questions in the Application, the Application states, “If you answered ‘YES’ to any question in [the background questions], please refer to Section IV of the Instructions for detailed instructions on providing complete explanations, including requirements for submitting supporting legal documents.” Id. In the Application’s “Section IV(b) – Explanation(s) for Background Question 1,” Petitioner listed the Federal Criminal Offenses. For one of the two offenses under “Penalty/Disposition,” he wrote “Time Served”; for the other, he wrote “55 months.” Id. Under “Description” as to each of the two Federal Criminal Offenses, Petitioner wrote, “5 years Supervised Release.” Id. Despite the Application’s detailed instructions that require criminal traffic infractions to be listed (“This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses . . . .” Id.), Petitioner failed to list the two Criminal Traffic Infractions. Petitioner’s Case Mr. Baines testified that his application should be granted because he has cooperated with Respondent by providing everything that was asked of him during the Application review process. Although he had not included the Criminal Traffic Infractions on the written Application, he freely admitted during the hearing it was his responsibility at the time he made out the Application to report them and to offer any relevant explanation of them. With regard to the Criminal Traffic Infractions, Mr. Baines testified he spent 30 days in the Orange County Jail. He seeks leniency in this application process based on his age at the time of the offenses which he claimed, at first, was 16. Noting the difference between his birthday and 2005 and 2006, Mr. Baines conceded during cross-examination that he was several years older than 16 at the time of the Criminal Traffic Infractions. Mr. Baines elaborated on the Federal Criminal Offenses explaining that he had fallen in with former high school friends whom he had not seen for some time when they recruited him to drive the get-away car in a robbery. He stated that at the time of the crime he was in possession of two guns both of which he had been carrying legally prior to the crime: a nine millimeter Glock and a .40 caliber handgun. Mr. Baines’ time in prison was spent without any violations of prison rules, according to his testimony, and he completed the post-release program successfully. His success in serving his time is the basis, Mr. Baines asserted, for his release from federal supervision so promptly after the expiration of the sentence. No documentation of “good behavior” in prison, however, was offered at hearing. In an attempt to demonstrate rehabilitation, Mr. Baines referred to his service to the Butterfly Foundation, J.J.’s Boxing Club, and the other two non-profit organizations with which he works that serve at-risk youth in the Pompano and Fort Lauderdale areas. He also averred that he had been cleared by the Department of Children and Families (“DCF”) to work with underprivileged youth for cheerleading and gymnastics although he offered no supportive documentary evidence from DCF. Mr. Baines did submit to Respondent as part of his application three documents related to rehabilitation. The first extolled his work as an employee. The second was written by a teacher at Stranahan High School who is a fellow basketball player at pick-up games in a public basketball court in Plantation, Florida. The third was written by his pastor at the Living Waters Sanctuary in Oakland Park, Florida. The authors of the letters all write highly of Mr. Baines. In support of his case for rehabilitation, Mr. Baines testified that after his conviction for the Federal Criminal Offenses, he had had only one slip-up: a urinalysis (“UA”) positive for marijuana, a substance he had used as a youth. Mr. Baines claimed that the UA was conducted only because those supervising his post-release case sent him for the testing after Mr. Baines had voluntarily acknowledged his recent use of marijuana. But for the single marijuana incident, Mr. Baines asserted under oath that his record after his conviction, in prison and out of prison during a post-incarceration discharge period, had been spotless. His admirable conduct, he testified, is what led to the court to promptly release him from federal supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 16th day of July, 2015. COPIES FURNISHED: Leroy L. Baines, Jr. 4808 Northwest 8th Court Lauderhill, Florida 33317 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Profession Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Darla Furst, Chair Real Estate Commission Department of Business and Profession Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 (eServed)
The Issue Whether Petitioner (the School Board) has just cause to terminate Respondent's employment on the grounds alleged in the Notice of Specific Charges.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. See Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract and assigned her to teach at Mae M. Walters Elementary School. Respondent began her employment with the School Board in 1993. While on traffic detail on August 10, 2000, Officer Calicchio stopped a car with an expired tag. At the time pertinent to this proceeding the car, a convertible, had its top down. The driver, a male, and Respondent, the front seat passenger, were the only occupants of the car. After the car pulled off the road, Officer Calicchio parked his patrol car behind the stopped vehicle, approached the vehicle, and asked the driver for his license and registration. The driver responded that he did not have his driver's license on his person and gave his name and date of birth to Officer Calicchio. Respondent informed Officer Calicchio that the vehicle belonged to her and gave him her license and the car's registration. Officer Calicchio returned to his patrol car to verify the information that had been given to him and to determine whether the driver had a valid license. While he was doing that, Officer Gomez appeared at the scene as backup for Officer Calicchio. Officer Gomez observed marijuana particles on the driver's shirt and in the car. After Officer Gomez related his observations to Officer Calicchio, the two officers took the driver into custody and placed him in the backseat of Officer Calicchio's patrol car. Officer Calicchio returned to the vehicle and observed marijuana particles in the vehicle. Officer Calicchio asked Respondent if he could search the vehicle. She consented and got out of the vehicle. After he completed his search, Officer Calicchio asked Respondent if he could search the large purse she was carrying. She consented and began pulling objects out of the purse and placing them on the hood of Officer Calicchio's patrol car. When Respondent slid her purse back up on her arm, Officer Calicchio asked if her purse was empty. Respondent answered in the affirmative. Officer Calicchio asked if he could look inside her purse. Respondent responded by leaning the purse towards him so he could look inside. Officer Calicchio observed two yellow envelopes in the bottom of the purse. Respondent consented to Officer Calicchio retrieving the two envelopes and opening them. The envelopes contained a green, leafy substance. When Officer Calicchio showed Respondent the contents of the envelope and asked what the substance was, Respondent fled on foot. Officer Calicchio, immediately followed by Officer Gomez, pursued Respondent. As she was fleeing, both officers observed Respondent reach into the front of her pants and pull out a plastic bag. As she was attempting to throw the bag into some bushes, Respondent slipped and fell to the ground. The plastic bag fell to the ground, landing next to the Respondent. The two officers recovered the bag and took Respondent into custody. The plastic bag contained a white-yellowish substance that Officer Calicchio field-tested using a Valtox field test. The substance tested positive for cocaine. Officer Calicchio also performed a field test on the green, leafy substance that was taken from the envelopes in Respondent's purse. The substance tested positive for cannabis. Subsequent tests by John Gall, a forensic chemist employed by the Broward County Sheriff's Officer, confirmed that the substance in the plastic bag was cocaine. The cocaine taken from the plastic bag weighed 35.2 grams. Respondent's conduct was sufficiently notorious to bring both Respondent and the educational profession into public disgrace or disrespect. Respondent's misconduct impaired her service in the community. On December 13, 2000, the School Board voted to suspend Respondent's employment and begin proceedings to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that upholds the suspension of Respondent's employment and terminates her professional service contract. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of August, 2001.
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
The Issue Whether Petitioner's application for licensure as a Community Association Manager by Examination should be granted.
Findings Of Fact When Petitioner was 20 years old, he and a group of other young adults stole approximately $15 worth of chrome off of a car in a used car lot. Petitioner was arrested on November 11, 1983, by the Deland, Florida, Police Department. On February 1, 1984, Petitioner appeared in Volusia County Court and pled guilty to "Petit Theft" under Section 812.014(3)(a), Florida Statutes. This offense is a second degree misdemeanor punishable as provided in Sections 775.082 or 775.083, Florida Statutes. The court withheld adjudication of guilt, placed Petitioner on six months' probation and assessed Petitioner $75 in costs. Petitioner was again arrested on March 12, 1993, by the Daytona Beach Shores, Florida, Police Department. Petitioner was charged with "Driving Under the Influence of Alcohol." Section 316.193, Florida Statutes, does not equate "Driving Under the Influence of Alcohol" with either a felony or a misdemeanor until the fourth conviction. Petitioner appeared in Volusia County Court on May 11, 1993, and pled nolo contendere to the lesser charge of "reckless driving," under Section 316.192, Florida Statutes. Florida Department of Law Enforcement documents created at the time list this charge as a first degree misdemeanor. In actuality, the offense of "reckless driving" is grouped under the "State Uniform Traffic Control" statutory Chapter. Without specifying whether or not "reckless driving" constitutes a felony or misdemeanor, Subsection 316.192(2)(a) provides that upon a first conviction of reckless driving the offender shall be punished by imprisonment for a period of not more than 90 days or by a fine of not less than $25 nor more than $500, or by both. The court adjudicated Petitioner guilty of "reckless driving" and assessed $300 in fines and costs. Petitioner's sentence fits the statutory category of a "first conviction," so it is concluded that this was his first reckless driving offense. There also is no evidence of any other traffic offenses committed by Petitioner. The statutory trail of "reckless driving" runs through Sections 316.192, 322.291, 318.17, and 921.0012, and the undersigned has been unable to determine that a first offense under Section 316.192 constitutes either a misdemeanor or a felony. Sections 775.04 and 775.08(2), Florida Statutes, suggest that a first offense of "reckless driving" is neither a crime nor a misdemeanor. From this information, it is concluded that there is no affirmative proof that Petitioner was convicted of a first degree misdemeanor. It is further concluded that there is no presumption created by his plea of nolo contendere to the reckless driving charge that Petitioner lost his civil rights. On February 10, 1997, Petitioner submitted an application for licensure by examination to become a Community Association Manager. Prior to his application for licensure, Petitioner had been the subject of an investigation by the Respondent Department for the unlicensed practice of community association management. As a trusted maintenance man for the same employer for over nine years, Petitioner had been trusted with money, with purchasing supplies and with doing maintenance work. He had acquitted himself honestly and honorably. Petitioner and his employer believe that the investigation arose out of a complaint that Petitioner also was giving instructions to other maintenance personnel or advising tenants, which arguably constitutes an element of the practice of Community Association Managment. They believe that the complaint was made by a rival condominium owner and/or by a resident manager whom the employer terminated. The investigation has been abated pending the instant application licensure proceeding. The application submitted by Petitioner contained the following question regarding the applicant's criminal history: Have you ever been convicted or found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( ). This question applies to any violation of the laws of any state, territory, or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. If you answer "NO" and it is later determined that the records have not been sealed or expunged, it will be considered that you knowingly provided inaccurate information on this application. Petitioner marked the space for "No," and submitted no history of his offenses and pleas with his application. On March 12, 1997, the Agency notified Petitioner that his application was deficient because the 1983 and 1993 arrests and case dispositions were not fully disclosed and documented on his application. He was given 60 days in which to submit the required information, which he did. On May 28, 1997, Respondent sent Petitioner its Intent to Deny Community Association Manager's Application for Licensure by Examination for failure to establish good moral character as required by Section 468.433, Florida Statutes. Petitioner explained that he thought the withholding of adjudication on the second degree misdemeanor guilty plea charge meant it was erased and need not be revealed. Although Petitioner conceded that no one told him adjudication was withheld on his 1993 reckless driving charge, he first testified that somehow he initially assumed that adjudication had been withheld. The remainder of his testimony, together with Petitioner's Exhibit 1, are construed to prove that, prior to Petitioner's completion and submission of his application for licensure in January of 1997, Petitioner had been informed that adjudication of guilt had not been withheld on his 1993 plea of nolo contendere to the charge of reckless driving, because the charge and conviction had shown up in a computer check when he tried to insure a new car prior to his professional licensure application. While testifying at formal hearing, Petitioner initially stated that he had not fully read the application question concerning any criminal record. Then, he represented that he had not fully comprehended it. Finally, he said he thought the 1993 conviction constituted a traffic offense and was not a misdemeanor. Based on the difficulty of determining the classification of the 1993 conviction, the undersigned concludes that Petitioner did not willfully withhold that information, and need not have disclosed it as the application question was drafted. The question is ambiguous in first requesting information about nolo contendere pleas to felonies or misdemeanors and then adding "violation of the laws" as an afterthought. Petitioner has not had any criminal charges or traffic offenses lodged against his record since 1993. Petitioner has never been the subject of any civil law suit involving fraud, dishonesty, misrepresentation, or concealment of material facts. Petitioner is highly respected by his direct supervisor and one of the owners of the buildings he maintains, both of whom testified to Petitioner's veracity, trustworthiness, and good moral character spanning 1988 through the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order permitting Petitioner to sit for the examination. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Edward D. Broyles, Executive Director Department of Business and Professional Regulation Division of Professions Regulatory Council of Community Association Managers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Michael Kennedy, Esquire Kennedy & Pyle 687 Beeville Road, Suite A South Daytona, Florida 32119 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact It was stipulated that the Respondent was certified as a law enforcement officer by the Petitioner on April 1, 1978. He holds certificate number 99-002304. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing the qualification and practice standards for law enforcement officers embodied in Chapter 943, Florida Statutes. Sometime in November, 1986, Diane Bouchard was traveling north on U.S. 1 in Nassau County. She acknowledged that she was traveling in excess of the lawful speed limit and believes she was traveling at approximately 60 miles per hour. Shortly after passing a truck weighing station, she observed a Nassau County Sheriff's patrol car, which had just passed her, turn around and follow her. She observed the blue light on that vehicle illuminate, at which point she turned to the side of the road and stopped. Mrs. Bouchard knew Officer Crews and he was acquainted with her and her family, including her husband. Mrs. Bouchard testified that Respondent got out of his patrol car and approached her vehicle while she was sitting in her parked vehicle behind the wheel. He did not ask her to get out of the vehicle. She says that he asked for her driver's license and she complied, handing Respondent her license. Mrs. Bouchard then testified that Respondent, while standing approximately 4 inches from her car door, told her that he had "clocked" her speed at approximately 75 miles per hour. He remarked that there was an $80 fine for such a traffic infraction and "points" which could be assessed against her driving record for a speeding violation. She stated that while he was standing next to her car door making these remarks, he began rubbing his penis through his clothing, becoming visibly sexually aroused. At approximately this same time, Mrs. Bouchard states that the Respondent told her that "we could work something out" regarding the ticket. Mrs. Bouchard then testified that the Respondent's actions and statement were taken by her to mean that he was attempting to extort sexual favors from her in return for forbearing to issue her a traffic citation. She maintains that she became extremely frightened as a result of these actions and attempted to dissuade the Respondent by reminding him that he knew her family. She maintains that the Respondent then stood alternately looking at her and looking at her driver's license for several more minutes and then announced that he was going to "let her go." She then drove home, according to her statement. Mrs. Bouchard maintains that she became very upset at this episode and was particularly sensitive to being victimized in this way because she had been sexually abused for approximately 13 years by her stepfather, even after she was married. She was reluctant to reveal the incident to her husband, but because she began having nightmares about the incident her husband became concerned, and so she told him about the episode approximately a week after the accident. She felt, however, according to her testimony, that no one would believe her if she reported the incident to law enforcement authorities. Approximately three months after the incident, however, she did report the matter to personnel of the Nassau County Sheriff's Department. The alleged incident supposedly occurred in close proximity to a truck weighing station at which a law enforcement officer was present and in close proximity, in the other direction, to a public campground. The incident occurred during daylight hours at approximately 5:30 or 6:00 p.m. on U.S. 1, a heavily traveled highway in Nassau County. The weigh station and campground are approximately a quarter of a mile apart. A Department of Transportation patrol car was at the weigh station and both the weigh station and the campground were in sight of the place where Mrs. Bouchard was allegedly stopped. Officer Crews was in uniform in a marked, Nassau County Sheriff's Patrol car. Mrs. Bouchard conceded that she had been speeding when she was pulled over and that Officer Crews never asked her to get out of her car. She conceded that he did not threaten her, touch her or actually expose himself to her. He did not write her a ticket. Mrs. Bouchard testified the reason she thought Officer Crews was "coming on" to her was because she associated certain gestures he was making with things her stepfather had done to her in the past. Mrs. Bouchard was referring to the history of sexual molestation of herself by her stepfather which she says occurred for an approximate 13-year-period after her mother kidnapped her from her natural father and she went to live with her mother and stepfather. During this time period and during the time in which Mrs. Bouchard elected not to report this alleged conduct by the Respondent, she and her husband were working at a garage that serviced Sheriff department vehicles and at which another police officer was employed. Police officers were frequent visitors to the garage, but she waited over three months before she spoke to anyone in law enforcement concerning this incident. Captain Chuck Moser of the Nassau County Sheriff's Department testified on behalf of the Petitioner. He interviewed Mrs. Bouchard on January 6, 1987. She told him that the above-described incident had occurred approximately 3 months earlier. She described the incident to Captain Moser much in the same way in which she described it in her testimony at hearing. Captain Moser did not reveal any other knowledge concerning the incident in question, and the Respondent, other than what Mrs. Bouchard had told him. Fuller Crews testified on his own behalf. He is 58 years old and has been married for the past 16 years. He was employed by the Nassau County Sheriff's Department from April 1, 1978 to November 10, 1987. In 1986, he was a lieutenant in the civil division and a traffic patrolman. He knows Mrs. Bouchard and her family and has even been fishing with her husband. In his work with the Sheriff's office, he has made several hundred traffic stops during his career. He does not remember every person that he ever stopped for a traffic infraction, nor did he make a practice of issuing a traffic citation to every person he stopped. Officer Crews often simply told offenders that he would let them go if they promised to slow down, or otherwise warned them with a lecture, depending upon the particular offender's attitude. He has no recollection of stopping Mrs. Bouchard, but does not deny that he may have done so. He adamantly denies ever asking Mrs. Bouchard for sex in exchange for forbearing giving her a traffic citation or making gestures which implied that intent. He stated that if he made any gestures in the act of getting out of his car and walking up to Mrs. Bouchard's car, it would have been in the nature of adjusting his gun belt or brushing his cigarette ashes off his trousers. The testimony of the Respondent and Mrs. Bouchard thus conflicts. There were no other witnesses to the episode. It is found that, even if Mrs. Bouchard did indeed feel that the Respondent was making sexual advances to her in return for his refraining from writing her a traffic citation, that her impression was mistaken. In reaching this finding, the Hearing Officer is mindful of the Respondent's apparent sincerity and candid demeanor on the witness stand, his past unblemished record, including his apparent record as a decent citizen and family man, as well as the unrebutted testimony concerning his past friendly relations with Mrs. Bouchard and her family. Mrs. Bouchard, on the other hand, while she may not have overtly lied about the circumstances of the incident, was mistaken in her impression of the Respondent's demeanor and intent in confronting her about the traffic infraction. It is found, based in part of Mrs. Bouchard's own testimony, that her impression of the Officer's intent in approaching her and manner of conversing with her, during this episode, was affected by her admitted past history of being sexually molested for a long period of time by her stepfather, such that she quite likely could have mistakenly associated some gestures, movements and comments made by the officer with a sexual advance or overture, when in fact the Respondent intended no such activity. Thus, Mrs. Bouchard's opinion, however sincere she holds it, is sufficiently colored and affected by her emotional situation, arising out of her past personal history, so that it cannot be considered competent evidence against the Respondent and cannot establish that the incident occurred as she described it. There is no other substantial evidence that would establish that the Respondent failed to maintain good moral character in regard to this incident, which is the only such incident charged in the Administrative Complaint.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Administrative Complaint filed against Fuller W. Crews, Sr. should be dismissed in its entirety. DONE AND ENTERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER NO. 89-1400 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. 4 Accepted. Accepted. Accepted. 7.-17. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in accordance with the clear and convincing evidence of record. 18. Accepted. Respondent's Proposed Findings of Fact 1.-13. Accepted. COPIES FURNISHED: Joseph F. White, Esquire Department of Law of Enforcement P.O. Box 1489 Tallahassee, FL 32302 Robert J. Link, Esquire Howell Lyles and Milton 901 Blackstone Building P.O. Box 420 Jacksonville, FL 32201 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302
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
