The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent Kenneth Burns (Respondent) is a certified correctional officer in the State of Florida. On or about November 26, 2000, Highway Patrol Trooper Brannon Snead saw a Camaro, with its emergency flashers on, parked on Highway 90 in the vicinity of State Road 10. Trooper Snead stopped to see if he could help and observed two white males hitting the passenger of a black Ford Mustang that was also parked alongside the road. Trooper Snead intervened and eventually arrested Respondent and charged him with criminal mischief, burglary of an automobile, and battery. Trooper Snead identified his arrest report which was received in evidence as Petitioner's Exhibit A. Trooper Snead observed Respondent strike the driver of the Mustang twice. Trooper Snead observed that Respondent was under the influence of intoxicants and was impaired. After arresting Respondent, Trooper Snead transported him to the Leon County Jail. Trooper Snead observed Respondent's demeanor. Respondent was argumentative, combative, and uncooperative. Trooper Snead had to warn Respondent several times about his behavior. Respondent spit all over the back of Trooper Snead's patrol car. Detective Patricia Iadanza testified that she was delivering two criminals to the jail on November 26, 2000. She observed Trooper Snead with two persons who were in handcuffs in the booking area. One was quiet. The other person, who she later learned was Respondent, was loud and obnoxious. She found it necessary to tell Respondent to sit down and be quiet. Respondent was loud and rowdy and indicated he was a certified officer. Detective Iadanza reported she warned Respondent that his conduct would get him in serious trouble in the Leon County Sheriff's Department and he needed to straighten out. He did not stop his loud and rowdy behavior. Subsequently, she wrote a report regarding Respondent's behavior after he made a complaint about Trooper Snead. According to Petitioner's late-filed exhibit, Respondent entered a plea of nolo contendere to a charge of trespass of a vehicle, battery, and criminal mischief. He was placed on probation for one year.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be suspended for 24 months. DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2002. COPIES FURNISHED: Kenneth Burns 1727 Dewey McGuire Road Perry, Florida 32348-8087 Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William G. Bankhead, Secretary Florida Department of Law Enforcement Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Florida Department of Law Enforcement Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Petitioner is a 68-year-old female residing in Jacksonville, Florida. Petitioner’s most recent employment is with Linda L. Curtis Health Care Agency (Curtis Agency), where she “sits with patients,” and provides entertainment and meals for patients. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. In connection with her employment at Curtis Agency, Petitioner underwent background screening on July 26, 2017, and was deemed automatically disqualified from employment based on a past offense. See § 435.06, Fla. Stat. Petitioner applied to the Agency for an exemption from disqualification, pursuant to section 435.07, which the Agency denied and which forms the basis of the instant Petition for Administrative Hearing. Disqualifying Offense On September 25, 1999, Petitioner was arrested and charged with misdemeanor battery for an incident at her home involving her 18-year-old cousin, Shanique Barner, whom she was raising, along with the cousin’s baby. The altercation began when Petitioner approached Ms. Barner about failing to keep her bedroom clean, an issue about which Petitioner had spoken to Ms. Barner repeatedly. The confrontation became physical and both parties began punching and hitting each other. When the fight ended, Petitioner took Ms. Barner to the hospital for a tetanus shot and treatment for a bite or bites inflicted by Petitioner during the altercation. An off-duty officer at the hospital was informed of the domestic violence incident and the arresting officer was dispatched to Petitioner’s residence. At Petitioner’s home, the arresting officer observed Ms. Barner with a swollen left eye and two bite marks on her left arm. After taking both parties’ statements, the officer arrested Petitioner and took her to a detention facility for booking. Petitioner pled nolo contendere to the charge of domestic battery and adjudication was withheld. On October 4, 1999, Petitioner was sentenced to four months’ probation and ordered to pay court costs of $104. Terms of Petitioner’s probation included no contact with Ms. Barner, completion of an anger control program, and payment of the costs of supervision. Petitioner’s probation was early-terminated on November 2, 1999, at which time Petitioner had completed the anger management program, paid her fine and court costs in full, and was current in the monthly cost of supervision. Petitioner was 50 years old at the time of the disqualifying offense, and Ms. Barner was 18. By Petitioner’s account, Ms. Barner was a rebellious and troubled teenager, who had become pregnant at age 17 despite Petitioner’s attempts to persuade Ms. Barner to begin using birth control at age 15. Subsequent Non-Disqualifying Offense Petitioner had no further involvement with law enforcement until April 8, 2008, almost nine years later, when she was arrested and charged with aggravated battery with a deadly weapon. The details of the incident are unclear and disputed. The record supports the following findings: For a month prior to the incident, Petitioner had allowed a male friend, Mr. Jones, to temporarily live at her home. Mr. Jones was ill, had lost his employment, and had applied for social security disability, but had not received payments in time to pay his rent. Mr. Jones had a “roommate,” Ms. Green, who was identified only as Mr. Jones’ girlfriend’s daughter. Ms. Green also moved into Petitioner’s home, temporarily, at the request of the girl’s mother. Apparently, Ms. Green, like Ms. Barner, was not much of a housekeeper. Despite assurances from Mr. Jones that Ms. Green would “clean behind herself,” Ms. Green frequently left dirty dishes in the sink, with which Petitioner was met upon her return from work. On the date of the incident, Petitioner returned from a day at work to find dirty dishes in her sink, left there by an unwelcome, and apparently ungracious, guest whom Petitioner, no doubt, expected to be a short-term guest. Petitioner informed Mr. Jones that Ms. Green would have to leave. Ms. Green began removing her belongings, but not at a pace Petitioner found very efficient, so Petitioner “assisted” in removal of Ms. Green’s belongings. Ms. Green objected, telling Petitioner not to touch her belongings. Petitioner responded by informing Ms. Green she could not re-enter Petitioner’s home to remove the rest of her belongings. Petitioner told Mr. Jones to remove the remainder of Ms. Green’s belongings. Petitioner positioned herself to block Ms. Green’s entry to Petitioner’s home. When Ms. Green attempted to enter Petitioner’s home, a physical altercation ensued. The altercation was broken up by Mr. Jones and Ms. Barner,1/ but proved only a brief interlude in the fighting. A second physical altercation ensued but the evidence conflicted as to which party initiated the fight, and whether either party was armed with a weapon of some sort. Ms. Green emerged from this altercation with a deep cut above her left eye. Following Ms. Green’s injury, Petitioner left the scene in her vehicle. An officer who had been dispatched to the scene observed Petitioner’s vehicle on his way to the scene, conducted a traffic stop, and transported Petitioner back to the scene. After the investigation, Petitioner was arrested and transported to a detention facility for booking. The State Attorney’s office declined to prosecute Petitioner and the charge against Petitioner was dropped. Educational and Employment History Petitioner maintained consistent employment both prior and subsequent to the 2008 arrest. Between April 2004 and March 2007, Petitioner was employed as a shop foreman and an office manager for Air Distributors Inc., a metal and fiberglass fabricator. Petitioner was a part-time cashier at WalMart from March 2007 to November 2011. Petitioner was employed with River Region Human Services (River Region) from April 2009 through June 2014. River Region is a residential rehabilitation facility providing methadone maintenance treatment to recovering addicts. At River Region, Petitioner served as a Monitor Technician, observing client activities and medication administration, filing behavior and incident reports, conducting perimeter checks, and transporting clients to off-site services. The record does not support a finding of the exact date on which Petitioner’s subsequent employment with Curtis Agency commenced. In connection with Petitioner’s employment by River Region, Petitioner received an exemption from disqualification from the Department of Children and Families. While employed with River Region, Petitioner completed a number of trainings sponsored by that agency, including Non- Violent Practices in 2013, as well as HIV/AIDS Parts I and II, HIPAA, Clinical Documentation, and Security Awareness in 2014. Subsequent Personal History The record was devoid of any subsequent history on Petitioner. It is unknown whether Petitioner lives alone or with roommates of any sort. Petitioner’s Exemption Request In her application for exemption, Petitioner provided a lengthy account of both incidents. Notably, Petitioner prefaced her explanation as follows: “To start I want to relate both incidents occurred because I cared about others. I tried to deaden this concern for others, but it just wouldn’t happen.” While there is some credibility in associating Petitioner’s actions in the first incident with a concern for her cousin, whom she was raising the record does not support a finding that the incident between Petitioner and Ms. Green, whom she was removing from her home for being untidy, is at all related to a concern for others. In her lengthy explanation of both incidents, Petitioner blamed the victim. With respect to her cousin, Petitioner explained that her cousin hit her first. With respect to Ms. Green, Petitioner explained that the victim came at her first with “something in her hand,” which Petitioner “immediately knocked out and caught.” Petitioner wrote: It was an unopened small red object. That’s when I recognized it was a small box cutter. As she kept coming I push [sic] it and cut her across her eyebrow. Petitioner’s account is troubling in many respects. First, if Petitioner recognized the object as a box cutter, she had time to drop the weapon, rather than use it against the victim, whether in self-defense or otherwise. Second, Petitioner’s account of the incident differs significantly from the accounts given by both Petitioner’s cousin and Mr. Jones to the officer at the scene. Both witnesses told the officer that, after the initial altercation between Petitioner and Ms. Green, Petitioner retrieved a scraper from her car, which she carried with her to her perch outside the door blocking Ms. Green’s reentry to her home.2/ If the witnesses’ accounts are accurate, Petitioner was untruthful on her application, and attempted to shift blame to the victim, when in actuality Petitioner was the party who intentionally armed herself for an anticipated second altercation with Ms. Green. Petitioner made no attempt to explain the discrepancy between her version of the 2008 incident and the version recounted in the police report. The lack of explanation is notable because Petitioner went out of her way to contradict other aspects of the police reports on both incidents. For example, while the police report noted Ms. Green suffered wounds on her chest, nose, and above her left eye, Petitioner insisted the 2008 report was incorrect and she cut Ms. Green only above the eye. As to the 1999 incident, the police report noted Ms. Barner had a swollen left eye and two bite marks on her left arm. Petitioner insisted the report was wrong, arguing that she bit Ms. Barner on the chest and not the arm. The remainder of Petitioner’s application is bereft of detail. In response to the question regarding the degree of harm to the victims or property, Petitioner noted only “Bite mark,” and “laceration over eyebrow.” Petitioner’s demeanor at hearing evidenced a complete lack of understanding of the seriousness of her actions against Ms. Green. Assuming Petitioner’s version of the events is accurate, Petitioner could have permanently blinded Ms. Green by intentionally striking her in the face with a box cutter. Regarding whether Petitioner had stressors in her life at the time of the disqualifying offense, Petitioner responded “None.” That response is contrary to Petitioner’s detailed description of the 1999 incident, which evidences significant stress between her teenage cousin, who was rebellious in many respects, including refusing to pick up after herself, not to mention bringing into the household an unexpected mouth to feed. With regard to current stressors and support system, Petitioner responded that she had no stress in her life and that prayer is her support system. She described her current living arrangements as a “2 bedroom, 2 bath apartment,” and that she has maintained her own household since she was 17 years of age. Petitioner failed to grasp the importance of distinguishing her current life circumstances and living arrangements from those at the time of the disqualifying offense and subsequent non-disqualifying offense. Without any distinguishing circumstances, the Agency is justified in questioning whether Petitioner’s circumstances are more stable. Petitioner stated that she had never received any counseling for any reason, and that she had never used or abused drugs or alcohol. Petitioner’s response to the question regarding whether she feels remorse and accepts responsibility for her actions reads as follows: Regret was immediately felt during incidents. We are responsible for our actions so to keep this always in mind take on fruitage of God’s spirit faith, goodness, kindness, love, longsuffering, joy, peace, mildness and self- control. Petitioner’s response is telling--it uses passive language and avoids the first person. Petitioner did not state, nor did she testify, that she regretted her actions, or that she was responsible for the harm caused. Both her written account and her live testimony evidence her intent to shift blame to the victims and acknowledge responsibility only in the broadest sense. Personal References Petitioner included two reference letters in support of her application: one from Ms. Barner and one from someone named Trinette Simmons. In Ms. Barner’s letter, she refers to Petitioner as her mom and explains that Petitioner cared for her from two weeks of age until five years of age, that she came to live with Petitioner again at age 13, and that she has “periodically resided at [Petitioner’s] residence for some years.” Ms. Barner states that Petitioner encouraged her and helped her graduate from school after becoming pregnant at age 17, and that love has always been in her mom’s heart. Petitioner did not explain her relationship to Ms. Simmons. The letter from Ms. Simmons states that she has known Petitioner since 2002, that Petitioner is capable of handling any situation “with thoughtfulness and maturity,” and that Petitioner is “a team player, as well as a team leader, who can adjust to changes within any environment.” The references are from persons who knew her when the 2008 incident occurred, but neither letter addresses the incident or explains that Petitioner’s behavior at that time was uncharacteristic, or that it has changed significantly since that incident. Moreover, neither of the letters is from an employer or other authority figure who has observed Petitioner interact with River Region clients or Curtis Agency patients. The Agency is charged with protecting the most vulnerable populations in Florida--children and adults with developmental disabilities. Some members of this population are uncommunicative, can be hostile, and act out. The Agency must be confident that any applicant seeking to work directly with these clients has demonstrated self-control and maturity to handle difficult, and often stressful, interactions with the clients. Both Petitioner’s disqualifying, and subsequent non- disqualifying, offense evidence Petitioner’s lack of self-control and good judgment when faced with stressful situations involving individuals who are defiant and refuse to take a course of action requested by Petitioner. Neither of Petitioner’s personal references document Petitioner’s ability to control herself and her reactions when faced with similar difficulties more recently. Petitioner’s account of the incidents shifts the blame to the victims and fails to demonstrate true remorse or responsibility for her actions, the harm she inflicted, and the potential for more serious harm based on her choices at the time of the incidents. While Petitioner seems to truly interested in continuing to help vulnerable citizens, even in a volunteer capacity as she nears retirement, she did not present evidence sufficient to demonstrate her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 3rd day of October, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of October, 2017.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on December 26, 1989, and was issued certificate numbered 121960. From time to time, the City of Miami Police Department conducts prostitution stings. An undercover female police officer is assigned to be the prostitute or "decoy." She stands at the assigned location. Another undercover police officer acts as "look-out," hiding nearby and watching the "prostitute" until she signals that she has been offered money for sex. She advises the person soliciting prostitution where to drive so they can complete their transaction. Upon her signal, the look-out radios a description of the vehicle and tag number to the "take-down" officers who are in their patrol cars nearby. The take-down officers then stop the vehicle and arrest the person who solicited prostitution. After she gives the signal, the "prostitute" walks over to the look- out, describes the person who made the offer of money for sex, advises what kind of sex was solicited and how much money was offered, and then returns to her assigned location. The look-out radios that additional information to the take-down officers who are making the arrest. On March 2, 1994, the City of Miami Police Department conducted a prostitution sting at S. W. 8th Street and 44th Court, an area with a reputation for prostitution. Officer Kelly Macina was assigned to be the prostitute, Officer Jorge Fernandez was assigned to be the look-out, and Officers Jorge Castano and Carlos Ortega were assigned to be the take-down officers in their patrol cars. The officers were instructed that Officer Macina would tell anyone soliciting her for prostitution to turn into the driveway of Burke's Motel. The motel was located on the corner opposite where she was standing. Prior to March 2, 1994, Officer Macina had only participated in two undercover prostitution operations in the 15 months she had been a police officer for the City of Miami. She had received no formal training in how to conduct a prostitution sting but for a supervisor showing her the statute on solicitation to commit prostitution and telling her to read it. On that evening Respondent was driving home from a club where he had had drinks with some friends. He was driving his black Corvette east on S. W. 8th Street near 44th Court when traffic slowed due to some commotion. He saw a woman standing in the street and saw a patrol car drive up and pull over a vehicle when it drove away from the woman. It occurred to him that he might be observing an undercover operation. He continued to drive by and then noticed two patrol cars parked in an abandoned gas station lot. He thought he recognized the driver of one of the patrol cars as one of his buddies from the apartment complex where Respondent lived. Respondent continued driving to his apartment at Ponce de Leon Boulevard and S. W. 8th Street. When he got there, he changed his clothes, checked his wallet and found that he had only $8, and then left to meet a friend at the pool hall near S. W. 8th Street and Red Road. Driving west on 8th Street, he decided to stop and speak to his buddy whom he thought he had seen in the patrol cars when he earlier drove by the 44th Court area. When he reached 44th Court, he turned right, heading north on 44th Court, made a U-turn, and headed back on 44th Court, heading south. He saw that the patrol cars were no longer at the gas station lot. When he stopped at the stop sign on 44th Court at S. W. 8th Street, Macina approached his vehicle and initiated a conversation. Before Respondent drove away, Macina gave the "take-down" signal. Respondent had given no money or other item to Macina. Respondent turned right on S. W. 8th Street, heading west toward the pool hall. When he had gone approximately 15-25 yards, he saw lights in his rear-view mirror bearing down on him. He pulled over, and a patrol car pulled in behind him. Over a loud speaker, Respondent was told to exit his vehicle, which he did. He was told to come back to the patrol car, which he did. He asked the police officers why he was being stopped and if he was being stopped for speaking to a pretty girl. The take-down officers asked to see Respondent's driver's license. When he opened his wallet, one of them saw a badge and asked Respondent if he were a police officer. Respondent advised them he was a police officer with the City of Coral Gables. The take-down officers exercised their discretion, determining not to arrest Respondent. They told him to leave, and Respondent apologized to them for interfering in their sting operation. Eighteen people were arrested that night. The following day, Officer Macina was asked to give a sworn statement to internal affairs at the City of Coral Gables Police Department. She did not remember what sex act Respondent was alleged to have requested, did not remember how much money was offered for that sex act, and did not remember the conversation she had with Respondent (except that he allegedly had said in response to her questioning that he was married and that his wife was on vacation). By the time of the final hearing in this cause, she had also forgotten which take-down signal she had used that evening.
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 and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 23rd day of July, 1998. COPIES FURNISHED: Richard Courtemanche, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lawrence E. Besser, Esquire 1925 Brickell Avenue, Suite D-207 Miami, Florida 33129 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue The issues are whether Petitioner should terminate Respondent from his employment as a deputy sheriff for allegedly engaging in prohibited conduct pursuant to Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Subsection 4, Laws of Florida (the Civil Service Act), and Petitioner's General Order Section 3-1.1, Rule and Regulation 5.2--relating to loyalty, Rule and Regulation 5.4--relating to duties and responsibilities, and Rule and Regulation 5.6-- relating to truthfulness; General Order Section 3-1.3, Rule and Regulation 3.20--relating to reporting procedures for the use of force; and General Order 3-2--relating to ethical requirements.
Findings Of Fact Petitioner is the Sheriff of Pinellas County and a constitutional officer described in Article VIII, Section 1, Florida Constitution. From sometime in 1989 until the termination of Respondent’s employment on March 14, 2008, Petitioner employed Respondent as a deputy sheriff in the Pinellas County Sheriff’s Office (the PCSO). Respondent was last assigned to the courthouse security division of the PCSO. On Saturday, November 3, 2007, Respondent was off-duty and volunteering as one of a number of parents who were supervising several high school bands that were practicing at Clearwater High School (CHS). Three juvenile males on bicycles approached the band practice area. Respondent yelled at them to stop, but did not identify himself as a deputy sheriff. One juvenile stopped. The other two juveniles ignored the commands and proceeded toward the Tarpon Springs Band. One of the riders wore a back pack with a baseball bat attached to the pack. Respondent reasonably believed that the juveniles, who were approximately 16 and 17 years old,1 presented an imminent danger of running into and potentially injuring members of the nearby Tarpon Springs Band. Respondent ran after the juvenile with a bat attached to his pack, grabbed the bat, and separated the juvenile from the moving bicycle. The second juvenile stopped at the point of separation. The juvenile with the baseball bat struck Respondent with his fist, and Respondent delivered a knee-spike2 to the mid- section of the juvenile. The knee-spike disabled the juvenile. The second juvenile was preparing to strike Respondent, when another parent pulled that juvenile away. Petitioner notified Respondent of the charges against him in a memorandum dated March 14, 2008 (the charging document). In relevant part, the charging document alleges in a paragraph entitled “Synopsis” that, during the altercation, Respondent failed to act within the scope of his responsibilities as a deputy sheriff. If that allegation were properly construed to allege that Respondent used excessive force, the fact-finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of that charge of misconduct. Respondent acted reasonably during the altercation. Respondent used reasonable force to protect band members from harm, and Respondent used reasonable force to defend himself from a juvenile. The exigencies of the moment did not afford time for Respondent to disclose his employment with the PCSO before taking action he reasonably believed to be necessary to protect members of the Tarpon Springs Band. Respondent cooperated with the police investigation at CHS. CHS is located within the jurisdiction of both the PCSO and the Clearwater Police Department. The Clearwater Police Department responded to the scene and conducted an investigation. The investigation was documented in Clearwater Police Report No. CW07-33468 (the police report). Another allegation in the synopsis of the charging document is that Respondent was untruthful by deliberately or intentionally omitting or misrepresenting material facts outlining his involvement in the altercation, including a memorandum Petitioner authored on November 5, 2007. The fact- finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of this charge of misconduct. It is undisputed that Respondent telephoned Corporal Victor Griffin, Respondent’s immediate supervisor on the evening of November 3, 2007, and reported the altercation in detail, including the attack by the juvenile and Respondent’s use of a knee-spike. Corporal Griffin instructed Respondent to inform Sergeant Edward Marshall, the next in command. Respondent telephoned Sergeant Marshall that night and informed him of the use of force and the details of the incident. At the hearing, Sergeant Marshall had little or no recall of the details of the conversation with Respondent on November 3, 2007. The only credible and persuasive testimony concerning that conversation is the testimony of Respondent. On the evening of November 3, 2007, Sergeant Marshall instructed Respondent to write a memorandum describing the incident and Respondent’s use of force when Respondent returned to work on Monday, November 5, 2007. Sergeant Marshall instructed Respondent to either reference the police report in the memorandum or attach a copy of the police report to the memorandum. Respondent drafted a memorandum on November 5, 2007. The memorandum referred to the police report, and Respondent submitted the memorandum to his supervisor. The police report included a handwritten, detailed description by Respondent of the use of force in the altercation. Petitioner had reasonable access to the police report. The Clearwater Police Department and the PCSO, by agreement, utilize a computerized joint records management system identified in the record as ACISS. Another allegation in the synopsis of the charging document is that Respondent failed to document the use of force, as required by agency policy. The fact-finder finds that a preponderance of the evidence does not support a finding that Respondent is guilty of this charge of misconduct. A complete description of the altercation and use of force was attached to the police report. That information fully documented the use of force and was available to Petitioner through ACISS.3 Another allegation in the synopsis of the charging document is that Respondent compromised the criminal investigation of the altercation by “accessing unauthorized information” and by “interfering with an ongoing investigation.” This allegation is based in substantial part on two undisputed facts that occurred on or about November 5, 2007. First, Respondent obtained a copy of the police report and discovered that the police report listed Respondent as a “victim/suspect.” Suspects are not entitled to a copy of a police report, but law enforcement officers may access the report. Second, Respondent persuaded the property department to change the status of brass knuckles found in a back pack at the scene of the altercation from being held for destruction to being held as evidence, so that the brass knuckles would not be destroyed. The fact-finder finds that a preponderance of the evidence does not support a finding that the undisputed actions of Respondent compromised the criminal investigation by accessing unauthorized information and intervening into an investigation in which Respondent was listed in the police report as a suspect. The undisputed actions of Respondent were consistent with the actions of the Clearwater Police Department, and neither action by Respondent compromised the investigation. The investigating officer for the Clearwater Police Department was off-duty on Monday and Tuesday, and she did not return to work until Wednesday, November 7, 2007. When the investigating officer returned to work, her sergeant instructed her to change the police report to list Respondent as a law enforcement officer, to delete his address from the report, and to change the designation of Respondent from a “victim/suspect”4 to a “victim” before finalizing the report. The investigating officer made those changes to the police report by computer entries on November 7, 2007, and those changes were available to the PCSO through ACISS. The sergeant also instructed the investigating officer to change the status of the brass knuckles from being held for destruction to being held as evidence, so that they would not be destroyed. The investigating officer contacted the property department of the PCSO to change the status of the brass knuckles to that of evidence and discovered the property department had already made that change at Respondent’s request. Respondent was entitled to a copy of the report because he was a law enforcement officer and was incorrectly listed on the report as a suspect. The actions of Respondent in changing the status of the brass knuckles so that they were listed as evidence was consistent with the actions of the Clearwater Police Department. Respondent did nothing on November 5, 2007, that the Clearwater Police Department did not do on November 7, 2007. If the investigating officer were to have returned to work on Monday, November 5, 2007, it is reasonable to conclude that the Clearwater Police Department would have provided a copy of the police report to Respondent, because Respondent would not have been listed as a suspect, and the Department would have changed the status of the brass knuckles so that they were being held as evidence. The investigating officer and her sergeant concluded the altercation was a matter of mutual combat and did not refer the case for prosecution by the state attorney. The nascence of the charges against Respondent emerged from two events. First, the mother of the two juveniles filed a complaint of excessive force against the PCSO. Second, when the investigating officer discovered that Respondent had already persuaded the property department to change the status of the brass knuckles, so that they would not be destroyed, the Clearwater Police Department complained to the PCSO about a deputy sheriff allegedly interfering with evidence. As a result, Petitioner initiated an administrative investigation that led to this proceeding. The penultimate allegation in the synopsis of the charging document is that Respondent provided confidential information regarding an open criminal case to another suspect. It is undisputed that when Respondent discovered on November 5, 2007, that he was listed as a suspect in the police report, Respondent told the parent that had prevented the second juvenile from attacking Respondent that the parent was also listed in the report as a suspect. The disclosure by Respondent was immaterial and had no impact on a pending criminal investigation. The Clearwater Police Department classified the altercation as mutual combat and did not refer the case for prosecution. The final allegation in the synopsis of the charging document is that Respondent failed to advise his supervisors of material facts regarding his “involvement in the ongoing . . . criminal investigation” and “subsequent actions” that Respondent took. The distinction, if any, between “involvement in the ongoing investigation” and “subsequent actions” is unclear to the fact-finder because the charges deal with Respondent’s actions during a pending investigation. The charges of misconduct do not address Respondent’s “subsequent actions” after the investigation was completed and case was closed. The investigating officer did not inform Respondent when she responded to the scene on November 3, 2007, that she was listing Respondent as a suspect. She did not decide to list Respondent as a suspect until she prepared her report that evening, long after Respondent had completed his written report that was included with the police report and had left the scene. Respondent did not learn that he was a suspect until Respondent obtained a copy of the police report on November 5, 2007. After obtaining a copy of the police report, Respondent talked to Lieutenant Rachel Hughes of the Courthouse Security Division at the PCSO and another of Respondent’s supervisors. Significant variation exists in the separate accounts of the conversation between Respondent and Lieutenant Hughes. The testimony of Lieutenant Hughes is inconsistent, self- contradictory, and less than credible and persuasive. The only credible and persuasive testimony concerning the conversation is the testimony of Respondent. During the conversation between Respondent and Lieutenant Hughes, Respondent expressed his displeasure at being listed in the police report as a suspect, stated that he would like to complain to someone at the Clearwater Police Department, and asked if Lieutenant Hughes knew anyone there. Lieutenant Hughes suggested that Lieutenant James Steffens at the Clearwater Police Department is a “good guy.” Before contacting Lieutenant Steffens, Respondent called the property department and identified himself as “Milewsky from over at the courthouse.” Respondent did not disclose that he was a suspect in the case involving the brass knuckles. Respondent knew or should have known that the property department employee reasonably believed that the call and request was related to official business. Lieutenant Larry Smith was in charge of the property department at the time and testified at the hearing. The property department would not have enhanced the status of the brass knuckles at the request of someone who was listed as a suspect in the police report. The failure to disclose to the property department that Respondent was a suspect in the case is not alleged in the charging document, and the ALJ cannot find Respondent guilty of a charge not alleged in the charging document. The relevant language in the charging document is confined to an allegation that Respondent failed to advise his “supervisors” of his “involvement in the ongoing . . . investigation” and his “subsequent actions.” Those assigned to the property department are not “supervisors” of Respondent. Respondent next telephoned Lieutenant Steffens of the Clearwater Police Department to discuss the fact that Respondent was listed as a suspect in the police report. Respondent and Lieutenant Steffens disagree over material details of the conversation, including the issue of whether Respondent requested Lieutenant Steffens to change the police report to delete Respondent’s name as a suspect. The fact-finder resolves the disparity in testimony between Respondent and Lieutenant Steffens against Respondent. The testimony of Lieutenant Steffens is the only credible and persuasive testimony concerning the conversation between the two men. Respondent did not want to remain listed as a suspect, but denied that the purpose of his call to Lieutenant Steffens was to have the report changed to delete his status as a suspect. Respondent insisted that his telephone call to Lieutenant Steffens was “unrelated” to changing his designation as a suspect. The testimony of Lieutenant Steffens was plausible, credible, and persuasive. Lieutenant Steffens recalled that Respondent advised Lieutenant Steffens that a Clearwater Police Department investigation contained erroneous information, and Respondent sought to get the error corrected “as soon as possible.” After emphasizing Respondent’s seniority and the lack of experience of the investigating officer, who was a rookie, Respondent stated that he did not want to make a complaint against the investigating officer, but just wanted the report changed so that Respondent was listed solely as a victim in the report. Respondent asked Lieutenant Steffens if they could get that done as quickly as possible. Lieutenant Steffens sent a message by email in this regard to Sergeant Wilton Lee, the supervisor for the investigating officer, asking Sergeant Lee to telephone Respondent. Sergeant Lee did not return to work until Wednesday, November 7, 2007. Before Lieutenant Steffens heard from Sergeant Lee, Lieutenant Steffens received a voice mail from Respondent inquiring as to why nothing had been done yet on the case. Lieutenant Steffens also received a telephone call from another suspect. Lieutenant Steffens telephoned Sergeant Lee directly about the inquiries. When Sergeant Lee reported to work on November 7, 2007, the police report was waiting for his approval. Sergeant Lee telephoned Respondent, whom Sergeant Lee knew to be a deputy sheriff, and agreed that Respondent should not be listed in the police report as a suspect. Respondent failed to advise his supervisors of two forms of involvement in the investigation. First, Respondent failed to advise his supervisors of his involvement in the enhancement of the brass knuckles from that of waiting for destruction to that of evidence. Second, Respondent failed to advise his supervisors of his efforts to change the police report to delete his name as a suspect. A preponderance of the evidence supports a finding that the failures described in the preceding paragraph violate requirements for loyalty and truthfulness. Those requirements are described in General Order 3-1.1 and Rules and Regulations 5.2 and 5.6. The Progressive Discipline Worksheet assigns 75 Progressive Discipline Points for violations of all of the charges in the charging document. However, a preponderance of the evidence supports a finding that Respondent is guilty of violating only two of the six charges of misconduct described in the synopsis in the charging document. The Worksheet does not delineate the points assigned to each charge, and Petitioner has not promulgated intelligible standards that enable the fact- finder to determine the points that should be allocated to the two violations committed by Respondent. No aggravating factors are evidenced in this proceeding. Respondent has no prior discipline during his 19 years of experience with the PCSO. The culpable actions of Respondent did not result in physical or financial harm to a member of the public or members of either the PCSO or the Clearwater Police Department. The culpable actions of Respondent did not compromise an ongoing criminal investigation. A preponderance of the evidence does not show that termination of employment is a reasonable penalty. Untruthfulness and disloyalty are serious offenses but, absent any aggravating circumstances, a reasonable penalty is suspension without pay beginning on March 14, 2008, and reinstatement to the former position of employment immediately upon the entry of a final order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order adopting the findings of this Recommended Order; suspending Respondent’s employment without pay from March 14, 2008, to the date of the final order; and returning Respondent to his former position of employment as of the date of the final order. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 22nd day of December, 2008.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
