The Issue Whether Respondent, Angelo Britton, failed to maintain good moral character required of correctional officers by committing the violations alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record of this proceeding, the following Findings of Fact are made: Findings Regarding the Parties and Events Preceding the Incident at Issue The Department is the state agency responsible for enforcing standards applicable to correctional officers, pursuant to section 943.12 and chapter 120, Florida Statutes. The Criminal Justice Standards and Training Commission certified Mr. Britton as a corrections officer in the State of Florida on July 1, 2015. He received Corrections Certification Number 325155. Mr. Britton and his ex-wife have been involved in a bitter custody battle over their six-year-old daughter since 2013. According to Mr. Britton, his ex-wife kept him from seeing their daughter after alleging that he sexually abused the child. Mr. Britton also claims that his ex-wife has been stalking him and suspects that she is responsible for initiating approximately 15 child abuse investigations of him by the Department of Children and Families. In February of 2017, Mr. Britton moved to an apartment complex in DeFuniak Springs, Florida, in order to be closer to his daughter. Soon thereafter, he met Larry Howard, who lives next door to him. Mr. Britton told Mr. Howard that he could not afford to pay for WiFi, and Mr. Howard agreed to let Mr. Britton use his WiFi in exchange for at least $10. Mr. Howard did not give his WiFi password to anyone else. Mr. Britton enjoys spending time with children. He babysits for friends and neighbors, and neighborhood children often play in his apartment. Findings Regarding the Incident at Issue and the Resulting Investigation On approximately May 23, 2017, three images of child pornography4/ were uploaded5/ to a Gmail account designated as “mysexyplay69@gmail.com” at an internet protocol (“IP”) address associated with DeFuniak Springs. An IP address is used to identify the location where someone has connected to the internet. That action prompted Google, Inc. to transmit a report to the National Center for Missing and Exploited Children (“NCMEC”). The report included the aforementioned images and IP address. NCMEC then forwarded that information to the Walton County Sheriff’s Office (“WCSO”). The WCSO’s Special Victims Unit, which investigates online exploitation and abuse of children, subpoenaed Charter Communications in order to determine who owned the IP address from which the pornographic images where uploaded, and Charter Communications reported that Mr. Howard was the owner.6/ WCSO investigators obtained a search warrant and searched Mr. Howard’s apartment on August 8, 2017. They “triaged” several digital devices found on site. Triaging is a process that uses scanning software to document the data stored on digital devices. The investigators found no child pornography or incriminating evidence on any of Mr. Howard’s devices and concluded that he was not responsible for uploading the pornographic images at issue. Mr. Britton observed the search of Mr. Howard’s home. Mr. Howard disclosed to the investigators that he allowed Mr. Britton to use his WiFi and that Mr. Britton was the only other person who knew his password. The investigators then subpoenaed Facebook for records concerning when and where Mr. Britton used his Facebook account. The records produced by Facebook revealed that Mr. Britton had used Mr. Howard’s WiFi to log onto Facebook as late as June 23, 2017. As noted above, the child pornography images at issue were uploaded on approximately May 23, 2017. After obtaining a search warrant, the WCSO Special Victims Unit investigators searched Mr. Britton’s apartment on October 19, 2017. They seized a cellphone, and a subsequent forensics analysis revealed the cellphone contained search terms that had been used in 2015 to search for items pertaining to lactation, sex with pregnant women, and sex with minors. Mr. Britton acknowledges being interested in pornography involving lactation and pregnant women but denies being interested in child pornography. Mr. Britton had disposed of a tablet and a computer at some point prior to the search of his residence. The search terms found on Mr. Britton’s cellphone led the investigators to conclude that Mr. Britton uploaded the pornographic images at issue to the Gmail account. Ultimate Findings Either Mr. Britton or Mr. Howard uploaded the child pornography at issue to the Gmail account designated as “mysexyplay69@gmail.com.” After searching his residence and electronic devices, the WCSO found nothing indicating that Mr. Howard was the responsible party, and Mr. Howard testified that Mr. Britton was the only other person with access to his WiFi. Mr. Howard was a very credible witness and gave no reason for the undersigned to question the veracity of his testimony. In contrast, the substance of Mr. Britton’s testimony and his overall demeanor during the final hearing gave the undersigned considerable cause to question the veracity of his testimony. For instance, Mr. Britton offered two implausible explanations for why the searches for child pornography were found on his cellphone. His first explanation is that the searches were “redirects” from adult porn websites. However, internet searches cannot be redirects.7/ Mr. Britton’s second explanation is that his ex-wife placed the pornographic searches on his cell phone, but Mr. Britton offered no explanation as to how his ex-wife gained access to his phone during the three months in 2015 when the search terms in question were used. Mr. Britton acknowledged having a sexual interest in pregnant women and lactation, and some of the searches pertained to those topics. That undermines any suggestion that someone else initiated the searches in question. In sum, the evidence clearly and convincingly demonstrates that Mr. Britton, rather than Mr. Howard, is responsible for uploading the pornographic images at issue to “mysexyplay69@gmail.com” and thus committed the violations alleged in the Department’s Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that Mr. Britton failed to maintain good moral character as required by law and revoking Mr. Britton’s correctional officer certification. DONE AND ENTERED this 2nd day of December, 2019, in Tallahassee, Leon County, Florida. S G.W. Chisenhall 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 2nd day of December, 2019.
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent, Willie A. Brown, was issued certificate number 43-83- 002-01, and certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on April 1, 1983. The Respondent was also issued certificate number 43-78-500-00, and certified as a correctional officer on July 1, 1981. At all times material to this case, the Respondent was employed as a police officer by the Lakeland Police Department. Respondent was assigned as a detective to the Special Investigations Unit (SIU) (now SID) of the Lakeland Police Department in 1987. Respondent's duties as a detective with the Lakeland Police Department- SIU were primarily the investigation, apprehension, and arrest of those individuals involved in the sale, delivery, and possession of illegal narcotics. The main goal of the Lakeland Police Department-SIU was to curb vice and illegal narcotics, and get them off the street. When Respondent began with the unit, there were five or six detectives. By 1989, the unit had grown to 18 detectives, two sergeants, and a lieutenant. The growth of the unit was due to the increase in illegal drug trade in Lakeland, especially of crack cocaine, which had reached almost epidemic proportions by 1989. Hand-in-hand with the increased drug trade was an increase in street- level violence, including drug related shootings, in certain areas of the city. As part of his duties, Respondent participated in "buy-busts" or sting operations and reverse sting or "reverse" operations. A sting or "buy-bust" requires an undercover officer or confidential informant (CI) under an officer's supervision to purchase illegal narcotics with previously recorded "buy" money issued by the Lakeland Police Department. Once the "buy" was completed, the purchased drugs would be field tested by the officer, placed into an evidence bag and marked, impounded into evidence, and then sent to a lab for analysis. The entire chain-of-custody would be documented from the time the officer obtained the drugs, to the time they were returned from the lab. The seller would either be arrested immediately after the sale, or a warrant for his/her arrest obtained within a short time. Whenever possible, the buy would be recorded by audio or videotape. In July of 1989, LPD had ample recording equipment available to its officers for such purposes. A reverse sting is the opposite situation where an undercover officer or CI under supervision sells drugs to another individual. Prior to conducting a reverse sting, the officer would obtain a known quantity of a previously tested substance (marijuana or cocaine) from a supervisor at the police department. The above was done for evidentiary purposes so that it could be proven in court that the substance sold to the targeted individual was, in fact, cocaine or marijuana. Once the drugs were sold to an individual, he/she was immediately arrested to avoid putting the drugs back on the street, or letting the drugs "walk." The drugs sold to the subject would be recovered, and sent to the lab to be re-tested. With one exception, authorized by the State Attorney's Office involving a very small amount of marijuana, drugs were not allowed to "walk" after a reverse. If a situation were to arise where drugs were to be "walked," prior approval would have to be obtained from the State Attorney's Office. Whenever possible, reverse sting transactions were to be audio or video recorded. Additional law enforcement assistance or backup was always required on a reverse sting operation for safety and evidentiary purposes. Before a reverse sting was conducted, prior approval or authorization from one of the SIU supervisors, was required. Once a reverse sting was completed, the money obtained from the purchaser was always required to be logged and impounded into evidence to preserve the chain of custody for evidentiary purposes. All stings and reverse stings were to be documented in reports. In July and August of 1989, the Respondent was thoroughly familiar with the procedures and proper methods for conducting stings and reverse sting operations. He had conducted or been involved in scores of such operations and, prior to the incidents giving rise to the instant case, had followed accepted procedures. It was a common occurrence that SIU detectives would locate and confiscate abandoned or discarded illegal drugs without making an arrest. Sergeant Tom Brown testified that although initially all "found contraband" had to be turned in and reported for each separate instance, he changed this policy due to the volume being recovered by 1989, and allowed his detectives to turn it in by the end of their shift to a superior to be placed in a safe, documented on one report, and disposed of later. Respondent was well aware of the policy for turning in found contraband, and prior to the incidents in the case at bar, followed said procedure. Although at one time, PDD detectives were allowed to resell found contraband in "quickie-reverse stings," this practice had been abandoned by 1989 due to problems with chain-of-custody and later proving in court the nature of the items sold. SIU investigators were also responsible for collecting intelligence information on individuals involved in criminal activity. In July of 1989, there were two individuals, Bill Lepere and Lynn Adams, responsible for maintaining intelligence reports or files. In addition, the members of SIU shared information at weekly meetings. In July/August 1989, after-hours work, such as arrests, had to be approved by a supervisor. In July/August 1989, if a SIU detective was investigating an active CI, either one working with Lakeland Police Department or another law enforcement agency, it was necessary to notify another member of SIU to avoid compromising an active investigation. In July/August 1989, if a SIU detective was conducting an investigation into alleged criminal activity of another police officer or law enforcement agent, it required notification and approval of a supervisor. By 1989, Respondent was a senior detective in DIU, who routinely followed policies and procedures, and even helped develop a SIU policy manual. In July and August 1989, it was standard operating procedure for investigations by SIU detectives and all Lakeland police officers to be conducted only after notifying and obtaining permission from a supervisor. In July and August 1989, all SIU detectives and all Lakeland police officers were to document their activities regarding investigations in reports in a timely manner. In July and August of 1989, all SIU detectives and all Lakeland police officers were to handle evidence collected in the course of their duties in accordance with departmental procedures. In July and August of 1989, all SIU detectives and all Lakeland police officers were prohibited from using evidence for their own personal use or from concealing it, destroying or tampering with, or withholding it in any way. In July and August of 1989, Respondent had a good working and trusting personal relationship with his supervisor, Sergeant Tom Brown. In July and August of 1989, Respondent also had a good working and trusting personal relationship with his partner, Vic White, and all members of the SIU. Respondent and his partner were considered two of the most self- motivated and aggressive officers in the unit, and Respondent had received citations and commendations for his work. In late 1988, Reggie Burns, a Special Agent (SA) with the Federal Bureau of Investigations (FBI) made contact with an individual by the name of Gloria Taylor. At the time, SA Burns, an agent since 1985, was assigned to the narcotics squad out of the Miami FBI Office. SA Burns met with Gloria Taylor in the Richland County Jail in Columbia, South Carolina, with the purpose of seeking her cooperation with them regarding some of her associates that were involved in criminal activity. Taylor became a paid FBI informant for SA Burns in exchange for Burns securing her release from jail. The FBI was aware of Gloria Taylor's criminal history, which made her more attractive as an informant due to her contacts. As with all confidential informants utilized by Burns and the FBI, Taylor was specifically instructed not to engage in criminal activity except at the direction of Burns. Taylor was instructed that whenever she was associating with those who dealt in narcotics, Burns was to be notified. It was not known whether Taylor abided by the above instructions prior to her dealings with Respondent. By their nature, CIs are hard to keep track of since their movements are not restricted. They are often in the streets, at large, and the agent may have to initiate contact with them. Taylor generally maintained contact with SA Burns from the time she began working with him until August of 1989. Prior to July of 1989, Burns became aware that Gloria Taylor was travelling to Tampa and Lakeland regularly, and possibly living in Lakeland. Due to the above, Burns contacted the FBI SA in Lakeland, "Doc" Gardner, as well as Sergeant Lynn Adams, Sergeant William Lepere, Sergeant Tom Brown, and Detective Ronnie Clayton, and possibly even Respondent of the Lakeland Police Department, and requested that they monitor Taylor's activities, and those of other individuals he was investigating at the time. SA Burns did not know Respondent prior to July 1989, and had not heard anything about him. Gloria Taylor first met Willie Brown in 1987. Although she had been stopped by him several times, he had never arrested her, and she had no disagreements with him. At all times in her contacts with Respondent, Taylor was aware that Respondent was a Lakeland Police Officer. In July/August of 1989, Gloria Taylor was a well-known criminal figure in the Lakeland area with a reputation for being involved in drug dealing, along with members of her family, T. Y. Brown and Gary Brown, who were known as the "Miami Boys." Gloria Taylor was thought by members of the Lakeland Police Department-SIU to be responsible for putting large amounts of illegal drugs out on the streets of Lakeland. In that time period, Gloria Taylor had a reputation for being a dangerous individual. Respondent, along with other members of the Lakeland Police Department, were involved in the arrest of Taylor's brother, T. Y. Taylor. T. Y. Taylor was convicted and sentenced to life imprisonment for that offense. Taylor was upset with the Lakeland Police Department, and Respondent personally, due to her brother's arrest and conviction. There were rumors that Gloria Taylor and her family had a "contract" out for the murder of Respondent, his partner Vic White, and Sergeant Tom Brown in retaliation for T. Y. Brown's arrest and conviction. In addition, there was a great deal of violence associated with drug dealers in general during that time period. Despite repeated attempts to make good cases on Gloria Taylor, she seemed to always escape prosecution or lengthy jail sentences. This was a source of frustration for Respondent and other SIU members. Prior to July of 1989, it became well-known in the SIU that Gloria Taylor was working with the FBI as an informant, and Respondent was aware of this fact. It was believed among members of LPD-SIU and Respondent that Taylor continued to engage in illegal drugs activities despite being an FBI-CI. During this same period of time, there was a feeling of mistrust by the LPD-DIU, not only of the FBI in general, but of SA Burns in particular. Lakeland resident, SA "Doc" Gardner, was the source of some of this distrust as he related that SA Burns appeared to be deviating from FBI policies. However, Gardner confirmed that SA Burns was authorized to come to the Lakeland area, and was conducting a legitimate investigation. This was related to the SIU and Respondent specifically prior to July 1989. Gardner made it known to the SIU and Respondent in particular that he was working with SA Burns. Gloria Taylor was a regular topic of conversation at SIU meetings prior to July 28, 1989. Prior to July 28, 1989, Respondent made only one mention at the SIU meeting that he was working on something regarding Gloria Taylor. Everyone else in the unit was working on something related to Gloria Taylor also. In July/August 1989, Respondent could have readily obtained assistance for an investigation into Gloria Taylor from Sergeant Tom Brown, his partner Vic White, or others in SIU. Respondent should have gotten authorization for such an investigation from Sergeant Brown. If Respondent had wanted to initiate an investigation of an FBI-CI like Gloria Taylor, it would have been considered a major case in July 1989. Such an investigation would require backup, prior authorization from a superior, and would have to be documented by reports. Prior to July 1989, Respondent had not conducted a major investigation without the knowledge, approval, and authorization of his superiors. Respondent never sought or received authorization from Sergeant Brown or anyone at the Lakeland Police Department to sell drugs to Gloria Taylor. Sometime in 1989, Respondent approached Gloria Taylor at a Lakeland residence, and took her for a ride in his Lakeland Police Department's unmarked vehicle. While they were in Respondent's vehicle, Respondent showed her a quantity of crack cocaine packaged in small-sized baggies inside a larger baggie. Respondent stated he had confiscated the cocaine during a drug bust. Respondent indicated to Taylor he wanted to "get rid of" the cocaine, and asked $700 for it. Ms. Taylor gave him $650, and agreed to pay him the remaining $50 later. Respondent later threatened to arrest Gloria Taylor if she didn't pay him the remaining $50, which she eventually did. Gloria Taylor later sold the $700 worth of cocaine to other individuals. Gloria Taylor, at first did not tell SA Reggie Burns of her drug purchase from Respondent, but did tell him later when confronted by SA Burns. At that meeting, Burns instructed Taylor not to meet with Respondent again until a controlled buy could be set up. SA Burns received permission from his Assistant Special Agent in Charge to conduct a monitored buy from Respondent to Gloria Taylor. The transaction was arranged for July 28, 1989, at McDonald's on Ariana and Central Avenue in Lakeland. Agent Burns, assisted by SA Pat Johnson, supplied Taylor with a recording device, which she hid in her bra, and prerecorded buy money. At this July 28, 1989, meeting, Respondent arrived in his Lakeland Police Department vehicle. Respondent did not pat Gloria Taylor down for weapons. Gloria Taylor met with Respondent, purchased approximately 10 pieces of crack cocaine from Respondent, and paid him $100 for the crack cocaine. Respondent indicated that the cocaine he sold Taylor was confiscated during a drug bust. During her discussion with Respondent on July 28, 1989, Taylor and Respondent discussed him giving her brother Gary Cocaine. Respondent indicated he could carry as much cocaine as he wanted while he was on duty, but if he was off duty, he might have to come up with an excuse. Respondent asked Taylor to keep him apprised of Reggie Burns' and the FBI's activities. Taylor did not acknowledge her relationship with Burns. Respondent cautioned Taylor not to tell anyone about their dealings. After the transaction with Respondent was completed, Taylor turned over the cocaine and tape-recording to SA Burns. SA Burns submitted the cocaine to the Drug Enforcement Administration (DEA) lab for analysis. The results were that it was, in fact, cocaine. At no time on July 28, 1989, or thereafter did Respondent attempt to arrest Taylor, or retrieve the cocaine he sold her. After the July 28, 1989 transaction, SA Burns notified the Tampa FBI Office of his investigation of Respondent. The Lakeland Police Department was also notified of the investigation. At no time after the Lakeland Police Department were notified did anyone come forward and inform SA Burns, or anyone at the FBI, that Respondent was conducting an authorized investigation of Gloria Taylor. SA Burns then had Taylor set up a second meeting with Respondent. The meeting took place at the same location as the July 28, 1989 meeting, at 12:15 a.m., on August 17, 1989. Gloria Taylor was given $600 in previously recorded and photocopied FBI "buy" money. Prior to the meeting, Gloria Taylor was searched, her vehicle was searched, and the other cooperating witness, Catherine Smith was searched, all with negative results; that is, no money or contraband were discovered. Gloria Taylor was again equipped with a recording device. Respondent arrived in the same unmarked vehicle, and Gloria Taylor entered his car while SA Burns and Johnson surveilled her. Respondent, again, did not pat Taylor down to see if she had any weapons. During the second monitored meeting between Respondent and Taylor, Respondent sold her 32 rocks of cocaine, and Taylor paid for it with $350 of the FBI buy money. Respondent told Gloria Taylor she could cut the rocks up, sell them, and double her money. Immediately following the transaction, Taylor met with SA Burns, and turned over the crack cocaine, tape recorder and tape, and excess money. SA Burns turned the 32 cocaine rocks in to the DEA lab for testing. The rocks tested positive for cocaine. At no time on August 17, 1989, did Respondent attempt to arrest Gloria Taylor, or retrieve the cocaine. Respondent never told Sergeant Brown about the sales on July 28 and August 17, 1989, after they were completed. Respondent never got authorization to let Gloria Taylor "walk" with the drugs sold to her on July 28 or August 17, 1989. Respondent never requested backup for his meetings with Gloria Taylor on July 28 or August 17, 1989. Respondent never received authorization to work overtime on drug investigation on July 28 or August 17, 1989. Respondent never filled out any intelligence reports on his anticipated or actual sales to Gloria Taylor. Respondent never had pretested drugs issued to him by a supervisor prior to his July and August 17, 1989, sales to Gloria Taylor. Respondent never placed into an evidence bag, marked, impounded, or turned in the money to the Lakeland Police Department from the July 28 or August 17, 1989, drug sales to Gloria Taylor. To date, no one, even Respondent's partner Vic White, has come forward to state Respondent told them of his drug sales to Gloria Taylor before- the-fact. Sergeant Brown never approved warrants against Gloria Taylor for either sale. Gloria Taylor received immunity and $4,000 from the FBI for her participation in Respondent's case. In February of 1991, Gloria Taylor was arrested by the Lakeland Police Department for trafficking in cocaine. In March of 1991, Taylor was sentenced to life in prison as a habitual felony offender. The FBI did not assist Taylor in any way in that case. Gloria Taylor was not paid anything or compensated in any way for her testimony at the hearing in the instant case. After the second sale of drugs from Respondent to Gloria Taylor, Respondent was arrested by members of the Tampa FBI Office and the Lakeland Police Department. The $350 FBI buy money was recovered from Respondent's person after his arrest. At no time during Respondent's conversations with Gloria Taylor did he ask her to become a confidential informant for the Lakeland Police Department. After Respondent's arrest, Sergeant Lynn Adams, assisted by then-FBI Agent "Doc" Gardner, conducted a thorough search of Respondent's vehicle and office. Prior to the search, Respondent's vehicle had been in FBI custody. There was no U.S. currency found in Respondent's vehicle. There were no intelligence reports, found in Respondent's vehicle. Notebooks found in the vehicle were secured, boxed, and placed in Lieutenant Roddenberry's office for safekeeping. Located in Respondent's car was a zip-lock bag with a small cocaine rock and a sip-lock bag with white powder, both field-testing positive for cocaine. The five $20 bills of FBI buy money from Respondent's first sale of cocaine to Gloria Taylor were not located by Adams or Gardner in the search of the vehicle. Adams and Gardner thoroughly searched Respondent's office, which had been padlocked since his arrest. Notebooks found in the Respondent's desk were placed into a box for safekeeping in Lieutenant Roddenberry's Office. The only U.S. currency located in Respondent's desk was a $1 bill altered to look like a $20 bill. The five $20 bills that were FBI buy money from the July 28, 1989, transaction were not located anywhere in Respondent's desk or office. There were no reports located in Respondent's desk or office. There were no notes or notations referencing Gloria Taylor found in Respondent's car, desk, office, or notebooks, although Adams and Gardner specifically looked for such notes. The search of the car and office took approximately three and a half to four hours. Respondent was indicted by a federal grand jury for two counts of distribution of cocaine within one thousand feet of a school, and one count of carrying a firearm while engaged in a drug trafficking crime. Respondent was acquitted of the charges after a jury trial in May 1990. Several members of the Lakeland Police Department believed Respondent was conducting his own "sting" operation at the time of his arrest, and would work with him again as a law enforcement officer. After his arrest, Respondent continued to testify on cases where he had been the arresting officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED. RECOMMENDED this 19th day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4067 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30 ,31,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54(inpart) ,55,56,57(inpart),58,59,60,61,62,63,64,65,66,67,68,69,70,71,72,73,74,75,76,77,78 ,79,80,81,82,83,84,85,86,87,88,89,90,91,92,93,94,95,98,101,102,103,104,105,106,1 07,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122,123,124,125,126,1 27,128,129,130,131,132,133,135,136,137,138,139,140,143(inpart),144,145,146,147,1 48,149,150,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169,1 70 Rejected as insufficient evidence or as against the greater weight of evidence: paragraphs - 96,97,99,100,134,141,142,143(in part),151,152 Respondent's findings of fact Respondent's proposed findings of fact were submitted in an unnumbered format. For identification purposes, I have assigned a page and paragraph number to each full paragraph as they appear in Respondent's proposed recommended order) Accepted in substance: page 1, para. 1, para. 2 (in part); page 2, para. 2 (in part), para. 3 (in part); page 3, para. 2 (in part); page 4, para. 1 (in part), para. 2 (in part), para. 3 (in part); page 5, para. 2, para. 3 (in part), para. 4 (in part); page 7, para. 1 (in part), para. 2 (in part); page 8, para. 1 (in part), para. 2 (in part) Rejected as not supported by credible evidence: page 2, para. 3 (in part); page 4, para. 1; page 5, para. 3; page 5, para. 4; page 6, para. 1, para. 2 Rejected as irrelevant or subsumed: page 1, para. 2; page 2, para. 1, para. 2 (in part); page 3, para. 1, para. 2; page 4, para. 2, para. 3; page 5, para. 1, page 7, para. 1, para. 2; page 8, para. 1, para. 2 COPIES FURNISHED: Gina Cassidy, Esquire Assistant General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 C. Kenneth Stuart, Jr. P.O. Box 2177 Lakeland, FL 33806-2177 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
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 The issue in this case is whether Respondent committed an act of violence against, or wrongfully detained, Beatrix Shadwell and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Class "D" Security Officer license, Number D93- 16229, and a Class "G" Statewide Firearm license, Number G93- 03349. On March 2, 1996, Respondent's wife telephoned the Collier County Sheriff Office from a convenience store and asked for assistance. A deputy was dispatched to the convenience store to talk to her. Respondent's wife was distraught when the deputy arrived. She said that she was afraid that something was wrong with her husband. She told the deputy that he had shot a gun when she had left the house and she was afraid that he had shot himself. In response to questioning, Respondent's wife, who had redness around her throat and small cuts on her hands, admitted that she and her husband had had an argument. The deputy accompanied Respondent's wife to her home. He searched the house without finding Respondent, although he found several guns, including some loaded. He then questioned Respondent's wife more closely. According to the deputy, Respondent's wife admitted that her husband had physically abused her by grabbing her by the throat, handcuffing her, taping her mouth closed, and putting a gun to her head and threatening to kill her. The deputy took a sworn statement to this effect by writing down what Respondent's wife said and having her sign it. Respondent's wife testified that nothing happened except that she and her husband had an argument. She claimed that her written statement is inaccurate due to her exaggerations and difficulties with English. Respondent's wife is Panamanian and has not resided in the United States for long. She speaks and understands English reasonably well, but not perfectly. While the deputy was speaking with Respondent's wife, Respondent telephoned the house. The deputy ordered him to come home and talk to the deputy. When Respondent returned home, the deputy gave him his Miranda rights and asked him about the incident. Respondent admitted pointing an unloaded weapon at his wife. Petitioner has not proved by clear and convincing evidence all of the facts contained in the statement of Respondent's wife. Her language problems raise some doubt as to the accuracy of the now-repudiated statement. However, Respondent admitted to the deputy that he pointed an empty gun at his wife. This evidence is unrebutted by other evidence because Respondent elected not to testify, and his wife did not discredit this portion of the deputy's testimony.
Recommendation Based on the foregoing, it is RECOMMENDED that the Division of Licensing, Department of State, enter a final order revoking Respondent's Class "D" and Class "G" licenses. ENTERED on October 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 19, 1995. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. Number 4 Tallahassee, FL 32399-0250 Steve Edmund Shadwell, pro se 1880 51st St. SW Naples, FL 33999
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place. Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists." Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones." Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 16, 1992, the Patient returned to Respondent's office. Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately twenty-three (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250). The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions. The Patient was in Respondent's office for approximately forty-five minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence. 57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994. J. STEPHEN MENTON 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 18th day of November 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Findings of Fact 9 and 15. Adopted in substance in Finding of Fact 7. Adopted in pertinent part in Finding of Fact 8. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Rejected as unnecessary. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 22. Adopted in substance in Findings of Fact 21 and 24. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 25. Adopted in pertinent part in Finding of Fact 29. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 29. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 30. Adopted in substance in Finding of Fact 30. Adopted in pertinent part in Finding of Fact 34. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 34. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Adopted in substance in Finding of Fact 35. Rejected as unnecessary. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 37. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 32. Adopted in substance in Finding of Fact 38. Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. [NOTE: 59. is blank on original document filed with DOAH.] Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. Adopted in substance in Finding of Fact 39. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 42. Adopted in substance in Finding of Fact 43. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 44. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 45. Adopted in substance in Finding of Fact 45. Adopted in pertinent part in Finding of Fact 49. Adopted in pertinent part in Findings of Fact 7, 8 and 56. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox. Adopted in substance in Finding of Fact 49. Adopted in substance in Finding of Fact 46. Adopted in substance in Finding of Fact 47. Adopted in substance in Finding of Fact 50. Adopted in substance in Finding of Fact 50. Adopted in pertinent part in Finding of Fact 52. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 51. Adopted in substance in Finding of Fact 52. Adopted in substance in Finding of Fact 51. Adopted in substance in Findings of Fact 14 and 53. Adopted in substance in Findings of Fact 14 and 53. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54. Adopted in pertinent part in Findings of Fact 14, 53 and 55. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 58. Adopted in substance in Finding of Fact 57 and addressed in the Conclusions of Law. Adopted in substance in Finding of Fact 59. Subordinate to Finding of Fact 7. Rejected as vague and unnecessary. Adopted in substance in Finding of Fact 60. Rejected as argumentative and unnecessary. Subordinate to Findings of Fact 7 and 8. Rejected as vague and unnecessary. Rejected as unnecessary. Respondent's proposed findings of fact Rejected as unnecessary. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Rejected as unnecessary. Adopted in substance in Finding of Fact 4. Rejected as vague and unnecessary. Subordinate to Finding of Fact 2. Adopted in substance in Finding of Fact 2. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in substance in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 9. Subordinate to Finding of Fact 5. Rejected as vague and argumentative. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9. Adopted in pertinent part in Findings of Fact 5. Rejected as vague and unnecessary. Rejected as vague and unnecessary. Adopted in pertinent part in Findings of Fact 5. Rejected as unnecessary. Addressed in the preliminary statement. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as vague and unnecessary. Rejected as unnecessary. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Adopted in substance in Finding of Fact 15. Rejected as unnecessary. Rejected as unnecessary and irrelevant. Subordinate to Finding of Fact 8. Rejected as contrary to the weight of the evidence. Subordinate to Finding of Fact 62. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Gary Robert Fine, Esquire 633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301
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.
The Issue Whether the Administrative Complaint should be dismissed on the grounds asserted by Respondent in his Motion to Dismiss/Motion to Remand for New Probable Cause Hearing, as amended? If not, whether Respondent committed the violations alleged in Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since December 12, 1986, certified by the Commission as a law enforcement officer. He holds certificate number 12-86- 002-03. Respondent is a police officer with the Port St. Lucie Police Department (hereinafter referred to as the "PSLPD"). He began his law enforcement career with the PSLPD in 1986. At around 2:00 or 3:00 a.m. on July 28, 1989, Respondent and two of his PSLPD fellow officers, Officer Raymond Steele and Officer Richard Schichtel, were at a convenience store when they received a call over their police radios that there was a reported burglary in progress on Damask Street. All three officers responded to the call in separate marked patrol cars. Steele lead the way. Behind him was Respondent. Schichtel was in the rear. As they were travelling eastbound on Port St. Lucie Boulevard, they approached from behind a slow-moving, orange Volkswagon Beetle occupied by two white males. Steele safely passed the slow-moving vehicle. As Respondent attempted to pass, the Volkswagon suddenly and unexpectedly turned left in the path of Respondent's patrol car, which was travelling at a high rate of speed. Respondent took evasive action. He avoided hitting the Volkswagon, but lost control of the patrol car. The patrol car spun around and skidded across the roadway. It finally came to rest after making contact with a concrete wall. Respondent was shaken by the accident. He had hit his head against the cage inside the patrol car 1/ and had momentarily lost consciousness. He had no visible injuries, however, and, upon regaining consciousness, did not believe that his condition was such that he required medical attention. Schichtel, who was following behind Respondent, stopped at the accident scene to render assistance. Steele, who was ahead of both of them, proceeded to the location of the reported burglary. A few minutes later, while Schichtel was still present, Christian Selph, the driver of the Volkswagon that Respondent had attempted to pass, arrived on the scene. Selph walked up to Respondent and asked him if he was okay. Respondent responded that he was fine and that there was no need for Selph to remain. Selph thereupon left the accident scene and continued on his way. 2/ Respondent tried to move his patrol car from where it had come to a stop, but his efforts were unsuccessful. Respondent radioed his supervisor, Sergeant Steve Claus, told Claus where he was, and requested Claus to meet him at that location. Complying with Respondent's request, Claus proceeded to the accident scene. Schichtel left the accident scene to join Steele at the location of the reported burglary. Schichtel arrived at the location of the reported burglary as Steele was about to leave. He informed Steele that Respondent had been involved an accident. He then returned to the accident scene with Steele following behind him. Respondent was not provided, nor did he request, medical attention following the accident. Based upon what they had observed and what they had been told by Respondent, it did not appear to any of those who arrived on the scene following the accident that Respondent was in need of such attention. The accident was investigated by Officer Charles Taylor of the PSLPD. Taylor collected physical evidence at the scene and interviewed Respondent, Schichtel and Steele before completing his accident report. Taylor interviewed Respondent at approximately 5:00 a.m. the morning of the accident. In a clear and coherent manner, Respondent related to Taylor how the accident had occurred. He made mention of the Volkswagon, its two white male occupants and its role in the accident. He further stated that the Volkswagon did not stop at the scene of the accident. 3/ During his interview with Taylor, Schichtel likewise reported that the Volkswagon did not stop at the scene of the accident. Within weeks of the accident, Respondent's and Schichtel's superiors received information that Selph, the driver of the Volkswagon, did stop of the scene of the accident after the accident had occurred. A PSLPD internal affairs investigation into the matter was conducted. After learning that the investigation had commenced, Respondent, who at the time was president of the union that served as the collective bargaining representative of the PSLPD's rank and file police officers, informed Schichtel about the investigation, advised him of his rights under the law enforcement officers' "Bill of Rights," and indicated that the union would be providing him an attorney if he so desired. Following this discussion between Respondent and Schichtel, Schichtel sent a memorandum to Lieutenant W.D. Hart of the PSLPD, dated August 18, 1989, which provided in pertinent part as follows: I did not see the VW, and assumed that it fled the area. The VW did return to the scene, but I am unsure if this was before I left to respond to the burglary or after I returned. The only conversation I recall was one of the occupants of the VW saying to Officer Dobler, "You didn't have your blue lights on did you?" I assumed that Officer Dobler had obtained the necessary information from them. After he released them from the scene, he told me that they were not pertinent to the accident, and for me not to mention that they stopped. I was unsure of his reasoning, but felt that it was his business. I feel that Officer Dobler was very shook up after the accident, and did not realize what he was doing until it was too late. I feel partially responsible for not stepping in and handling the situation, but I felt I should not override a senior patrolman. I am very sorry for my actions, and I know what I did was wrong. I was in a situation I did not know how to handle, and used poor judgment. I feel confident that if I am faced with a similar situation in the future, I will know how to handle it properly. The PSLPD suspended Schichtel for five days for having falsely stated to Taylor that the Volkswagon had not stopped at the scene of the accident. Respondent, on the other hand, was terminated by the PSLPD in accordance with the unanimous recommendation of the review board that considered his case. Respondent appealed his firing. Pursuant to a settlement agreement, Respondent was subsequently rehired as a police officer by the PSLPD. The Commission received notice of Respondent's termination on May 10, 1990. A case file was prepared and the matter was assigned to Commission employee Linda Hodges, who at the time was working on approximately 300 other cases. Hodges requested additional information from the PSLPD on June 26, 1990. The requested information was received on July 20, 1990. It was not until May 17, 1991, that Hodges completed her work on Respondent's case and prepared and mailed Respondent a letter notifying him that his probable cause hearing would be held on July 24, 1991. Respondent, through his attorney, requested a continuance of the hearing. The request was granted and the hearing was rescheduled for October 23, 1991. Respondent was notified of such action by letter from the Director of the Division of Criminal Justice Standards and Training, dated August 19, 1991, the body of which read as follows: This notice will serve to advise you that a Panel of the Criminal Justice Standards and Training Commission will meet in regular session on October 23, 1991, 8:30 a.m., at the Gainesville Hilton, 2900 Southwest 13th Street, Gainesville, Florida. The above noted-case will be presented to the panel to determine if probable cause exists to initiate a formal legal proceeding to revoke your Law Enforcement certification. The hearing will be conducted in accordance with the provisions of the Administrative Procedures Act, Chapter 120, Florida Statutes. Due to the preliminary nature of the hearing, no witnesses will be subpoenaed and the Panel will judge probable cause based upon written materials. You may attend the hearing or submit documents which refute, explain, or mitigate the allegation(s) against you. The documentation must be submitted to the attention of Linda Hodges no later than September 5, 1991. Should probable cause be found a later hearing will be made available to you prior to the final resolution of this matter. If you require specific information regarding the alleged misconduct, please contact me or Linda Hodges, Standards and Training Specialist in the Bureau of Standards, at 904-487-4922. Please notify this office if you are planning to attend the hearing. Prior to the scheduled probable cause hearing, Respondent unsuccessfully sought to examine the materials in the Commission's file on him to determine its completeness. He then attempted to obtain an injunction to prevent the Commission from holding the probable cause hearing. Respondent withdrew his request for an injunction based upon the representation made by Commission staff that, if a finding of probable cause was made at the October 23, 1991, hearing, Respondent could ask for a new probable cause hearing at which he would have the opportunity to present additional material information to the probable cause panel. Respondent's case was heard by the probable cause panel on October 23, 1991, and probable cause was found. Neither Respondent nor his attorney appeared before the probable cause panel. Schichtel's case was presented to the probable cause panel the very same day. No probable cause was found in his case. The Commission issued an Administrative Complaint against Respondent on December 18, 1991. Respondent requested a formal hearing on the allegations set forth in the Administrative Complaint. After a finding of probable cause was made in his case, Respondent was allowed to review his Commission file. In his opinion, the file contained inaccurate and incomplete information. Respondent sought a new probable cause hearing to present additional information to the probable cause panel. His various requests were denied. On January 19, 1993, the instant matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested on the allegations set forth in the Administrative Complaint issued against him by the Commission. Although Respondent is still employed as a police officer by the PSLPD, he has been assigned administrative duties pending the outcome of this disciplinary proceeding. While the final hearing in this case was held almost three years from the date the Commission had been made aware by the PSLPD of Respondent's alleged misconduct, the passage of time has not adversely affected in any material way Respondent's ability to defend himself against the allegations made against him, nor has it otherwise impaired the fairness of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of June, 1993. STUART M. LERNER 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 23rd day of June, 1993.
The Issue The issue for consideration in this case is whether Respondent's certificate as an educator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Commissioner of Education, was the state official in Florida responsible for the certification of educators and the regulation of the teaching profession in Florida. Respondent was certified as an educator in this state by the Petitioner, and held Florida Educator's Certificate 554449, valid through June 30, 1995, and covering the area of elementary education. Crystal S. Bush, Respondent's wife, met the Respondent when he was her cross-country coach while she was a sixth grade student at Suncoast Middle School. He became her teacher for English and social studies the following year when she was a seventh grade student at that school. She married him in February 1993, when she turned sixteen years old, while she was in the ninth grade. Respondent and his wife had one child, a boy, in February 1994, and separated in the Spring of 1995 because, she claimed, he became very controlling and verbally abusive. Because she did not have any money, and needed funds on which to live, Mrs. Bush withdrew $400.00 from their joint bank account. With their child, she moved back with her parents, occupying the garage apartment on their property about three and a half miles from where she had lived with Respondent. Mrs. Bush insists that Respondent knew she was leaving, but she did not know if he knew where she was going. She believes he did, however, because he knew she had no place else to go. A day or two after the separation, Respondent came to the apartment where Mrs. Bush and the baby were staying. They were taking a nap at the time. He claims he went to the parents’ house first and was told his wife was in the garage apartment and he should "go on in,” which he did. Respondent entered the apartment and went into the bedroom where Mrs. Bush and the baby were sleeping. According to Mrs. Bush, she was awakened by Respondent's yelling that he wanted his mail-box key and the money she had taken from their joint account. Mrs. Bush contends that though she had her own checking account before this, he opened up the joint account with her as a gift, and it was into this joint account that their sizable tax refund check had been deposited. She claims that they had agreed she was to get half of the refund, but Respondent later reneged on that agreement. Mrs. Bush gave him the mail-box key, but asked him to let her keep a part of the refund. She had stopped working as a club dancer and had no money. Respondent refused. Because of his attitude, she declined to return any of the money she had withdrawn. Because Respondent's yelling was scaring the baby, and Mrs. Bush tried to terminate the conversation, but Respondent would neither be quiet nor let her leave. She tried to ignore him, but, she contends, he picked up an incense box and threatened to kill her with it. Respondent also demanded that she give him the baby. He claims he had had care of the child 5-to-6 nights a week while his wife was working, but when she left, she refused to let him have the child any more. Mrs. Bush contends that when she refused to give up the child, Respondent pushed her to the floor, pulled her hair and hit her on the lip, splitting it. She cannot say whether he hit her with his open hand or his fist, but there is no doubt her lip was split. The injury was observed by Mr. Gregory, a domestic violence investigator with the county, when he interviewed her a few days later. Mrs. Bush also claims that during the course of the fight over the baby, Respondent threatened to break the baby's arm if he had to in order to get the child. Respondent denies this, and there is no evidence that any such injury was inflicted on the child. However, that Mrs. Bush finally gave up the child and the Respondent left the premises. Immediately after Respondent's departure, Mrs. Bush called the police who responded within fifteen minutes. When they arrived, she told them that Respondent had hit her and the child, and she repeated that allegation to the court when she subsequently sought an injunction against him. She also advised an investigator for the Department of Education that Respondent had hit her and had returned the child to her scratched and bruised. This report was also made to child protection investigators with the Department of Health and Rehabilitative Services some weeks later. No evidence was introduced to confirm her allegations of injury to the child, however. Later the day of the incident, Respondent was arrested on a charge of domestic violence, and the child was returned to Mrs. Bush. While the police were at her house, they suggested she sign a document seeking a restraining order against Respondent, which she did. Respondent and his wife talked by telephone several times after his arrest. As a result of these discussions, she put up the funds required to get him released from jail on bond the following morning. Several days after the incident, because she was experiencing pain in the neck, Mrs. Bush saw her doctor. At that visit, no medical attention was required for the injury to her lip. She did not feel it necessary to take the child to the doctor because though, she claims, he had been struck by the Respondent, he did not seem to be injured. In the interim between Respondent's arrest and his subsequent court appearance at which his plea of nolo contendere was entered, Mrs. Bush obtained an order granting a temporary injunction against the Respondent to prevent him from committing any violence against her. This was followed by an amended order which made the injunction permanent. Mr. Gregory, the court's domestic violence and family law investigator, received the same story from Mrs. Bush that she had told to the police, and conducted his own investigation. Gregory claims to have spoken with Respondent during several mediation meetings. On each interview, save one, Respondent had an attorney present. Mr. Gregory contends that Respondent admitted there had been a physical altercation between him and his wife, but that the hitting of Mrs. Bush was an accident which occurred while he was trying to take the child from her arms. Gregory also states that Respondent admitted striking Mrs. Bush in the mouth, pushing her to the floor, pulling her hair, and threatening to take the child away from her. At hearing, Respondent again claimed he was acting in self-defense to his wife’s striking out at him and grabbing him by the genitals. In light of the fact that this defense was not raised to anyone prior to hearing, however, it is rejected. Based on his investigation into the incident, Mr. Gregory recommended that the State Attorney proceed with prosecution of the criminal charges which had been filed against the Respondent. Thereafter, on February 27, 1996, Respondent pleaded nolo contendere in circuit court to a charge of domestic violence. The court withheld adjudication but sentenced the Respondent to one-year probation, a fine of $150.00, required him to attend counseling, and directed him to refrain from contact with Mrs. Bush. In the expert opinion of Marilyn L. Strong, the Director of Personnel Services for the Lee County Schools and an educator with almost a quarter century of administrative and supervisory background, the misconduct attributed to Respondent constitutes both gross immorality and moral turpitude as they are defined in the Florida Statutes and the rules of the Department of Education. However, Ms. Strong’s opinion is not supported by the facts in this case, and it is found that Respondent’s single striking of his wife does not here constitute either gross immorality or moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 16th day of October, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Lawrence Bush, pro se 4840 East Riverside Drive Fort Myers, Florida 33905 Kathleen M. Richards Executive Director Education Practices Committee 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Pl-08 Tallahassee, Florida 32399-0400
