Findings Of Fact The Respondent, Thomas E. Gibbons, was certified by the Criminal Justice Standards and Training Commission on October 19, 1979, and was issued certificate number 99-2054. At the times pertinent hereto, Respondent was a certified law enforcement officer employed by the City of Fort Lauderdale Police Department. At the times pertinent hereto, Respondent, Officer Robert Grant, Officer William A. Drossman, and Officer Phillip Seguin were police officers employed by the City of Fort Lauderdale Police Department and were assigned to the canine unit (K-9 Unit). On December 23, 1988, several City of Fort Lauderdale police officers became involved in a vehicle chase of a burglary suspect. The sequence of events described below occurred during the early morning hours before daylight, and resulted in the arrest of Michael Jerome Jones. The Respondent, Officer Grant, Officer Drossman, Officer Seguin, and several other officers heard the call on the radio and responded to assist in apprehending the suspect. Law enforcement officers from other jurisdictions became involved in the chase of the suspect. After being involved in the chase for a short while, the suspect abandoned his vehicle and sought to escape on foot. Among those involved in the foot chase of the suspect were the Respondent, Officer Grant, Officer Drossman, and Officer Seguin. Each of these K-9 officers utilized his dog in the chase. The chase of the suspect occurred in the vicinity of Oswald Park and the subsequent apprehension occurred in a field adjacent to the park on the north. This area is out of the geographical jurisdiction of the Fort Lauderdale Police Department. Consequently, these K-9 officers had not worked in this area before. Between the park area and the area of the apprehension is a cyclone wire fence approximately five feet in height which was, at the time of the incident, covered with vines. Oswald Park is a lighted, fairly open area. The area of the apprehension is a field that was dark and overgrown with vegetation. Officer Grant exited his vehicle on Northwest 27th Street, Fort Lauderdale, in pursuit of the suspect. Officer Grant first considered releasing his dog so that the dog could make a running hit on the suspect. Because another officer came between Officer Grant's location and the direction the suspect was heading, Officer Grant could not release his dog. The officers involved in the chase surrounded the area in which the suspect had run. Officer Grant and his dog were stationed on the north side of the field. Several officers, including Officer Seguin, were in Oswald Park. Officer Grant believed Respondent to be west of the suspect. Officer Drossman's dog tracked the suspect into a fenced yard. Officer Drossman located the suspect hiding on top of a two-story barn and told the suspect he was under arrest. Instead of obeying, the suspect jumped off the south side of the roof and continued to run toward Officer Grant's position. Officer Drossman and another officer advised Officer Grant by radio that the suspect was heading in his direction. Officer Grant, who was on the northeast corner of the field, observed the suspect jump over the fence into the field. Officer Grant had his dog on a leash that was approximately fifteen feet in length. Officer Grant's dog tracked the suspect to the southeast corner of the field and located the suspect while he was lying face down on a sand hill. At no point after the point of apprehension did the suspect offer any resistance to any law enforcement officer. 1/ The conflicts in the evidence are resolved by finding that Petitioner established the following facts by clear and convincing evidence. Officer Grant's dog bit Mr. Jones at least once on the shoulder area of his outstretched right arm and held on to the shoulder, causing Mr. Jones to cry out in pain. Officer Grant placed Mr. Jones under arrest and handcuffed Mr. Jones using metal handcuffs with his hands in front. No other officer assisted Officer Grant in handcuffing Mr. Jones. Respondent was in Oswald Park when he heard Officer Grant's dog make contact with Mr. Jones. Respondent believed that only one officer was at the arrest scene and decided to assist that officer. After he tied his dog to the fence separating Oswald Park and the arrest site, Respondent leaped over the fence, which was approximately five feet in height, and proceeded to the arrest area. Respondent dropped his flashlight 2/ while crossing the fence and located the arrest scene from the noises being made by Mr. Jones, Officer Grant, and Officer Grant's dog. Respondent ran from the southern area of the field over to where Officer Grant was standing with Mr. Jones. After Mr. Jones was handcuffed, Officer Grant took his dog off and pulled Mr. Jones to his feet by pulling on the handcuffs. Officer Grant saw Officer Drossman and Officer Drossman's dog standing behind him while Officer Grant was lifting Mr. Jones off the ground. Respondent arrived on the scene of the arrest just as Officer Grant was pulling Mr. Jones to his feet. Respondent grabbed Mr. Jones and pulled him away from Officer Grant. Respondent was making comments about how he had hurt his hand and got dirty trying to find Mr. Jones and then started striking Mr. Jones while Mr. Jones was handcuffed and not resisting. Respondent struck Mr. Jones with his fists in the upper torso area, causing him to fall to the ground, and kicked him several times. Respondent helped Mr. Jones to his feet and subsequently struck him again, causing him to fall to the ground. Officer Seguin, who was stationed across the fence in Oswald Park, heard the suspect screaming and heard sounds like someone was being hit. Officer Seguin also testified that he saw the light from flashlights in the area of the arrest. Mr. Jones never slipped a cuff during this incident, nor did he ever try to fight Respondent. After Respondent stopped hitting Mr. Jones, Respondent walked south of the field with Mr. Jones to the fence. At the fence, Respondent prodded Mr. Jones to climb up on the fence by kicking him on the back of his legs. Once Mr. Jones was on the fence, Respondent pushed him so that Mr. Jones fell to the other side of the fence and into Oswald Park where Officer Seguin and Officer Salisbury were waiting. While the proof was sufficient to demonstrate that Respondent committed a battery upon Mr. Jones immediately following his arrest, it was insufficient to demonstrate that the manner in which Respondent caused Mr. Jones to cross the fence entailed the use of excessive force or that it constituted a battery on the person of Mr. Jones. Officers Salisbury and Seguin then took custody of Mr. Jones. 3/ Mr. Jones was handcuffed to the front at the time he came into the custody of Officer Seguin and Officer Salisbury. Officer Salisbury re-cuffed Mr. Jones with his hands behind his back and placed Mr. Jones in his police car. Officer Salisbury later returned Officer Grant's handcuffs to him. Mr. Jones was transported back where he had abandoned his vehicle and the foot chase began. Respondent and most of the other officers involved in the chase gathered at this location. Sgt. Runnerstrom, who was the supervisor for the K-9 unit officers, was also present. The officers present thereafter engaged in a bull session wherein Respondent bragged about having made Mr. Jones, whom he called an "ass-hole", a lesson for making him sweat, jump the fence, and get dirty. On January 12, 1989, some unknown party wrote a letter to Captain Thomas of the City of Fort Lauderdale Internal Affairs Department which in detail complained of Respondent's behavior on December 23, 1988. This letter was written from the perspective of someone who was at the scene of the arrest and charged Respondent with having used excessive force against Mr. Jones. The letter was delivered to an area of the police department that has restricted access. This letter was assigned to Internal Affairs Sgt. Richard Herbert for investigation. After Officer Grant, Officer Drossman, and Officer Seguin gave statements to Sgt. Herbert, each was separately approached by Respondent. Respondent first learned of the Internal Affairs investigation through another officer on March 9, 1989. Officer Grant testified that he could not remember exactly what Respondent had said to him, but that he construed the conversation as a request to modify the statement that Officer Grant had given to internal affairs by saying that it had been too dark for him to see whether Mr. Jones had slipped a cuff. Officer Grant also testified that Respondent never asked him to lie and that the conversation could have been interpreted differently. Officer Drossman testified that Respondent asked him to say that it was too dark for him to have seen what had happened. Officer Drossman also testified that Respondent did not ask him to lie. Officer Seguin testified that he had several conversations with Respondent about the matter, but that Respondent did not try to tell him what to say. Petitioner failed to establish by clear and convincing evidence that Petitioner asked Officer Grant or Officer Drossman to lie about the incident. While discussing the manner in which Mr. Jones came over the chain link fence, Respondent stated to Officer Seguin that Respondent would have to "out and out lie about how the guy came over the fence." On March 21, 1989, Respondent gave a sworn statement to Sergeant Herbert which was consistent with the version of the events of December 23, 1988, to which Respondent testified at formal hearing. This sworn statement did not accurately describe the events that occurred at the scene of the arrest on December 23, 1988. At the conclusion of the Internal Affairs investigation, Respondent's employment with the City of Fort Lauderdale Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent committed battery against the person of Michael Jerome Jones on December 23, 1988, and that he subsequently gave a false statement to internal affairs about the incident. It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of one year. DONE AND ORDERED this 2nd day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of October, 1992.
The Issue Whether Respondent, Peter E. Wicher's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on January 22, 1990. He holds law enforcement Certificate No. 29622. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a deputy sheriff with the Osceola County Sheriff's Office. In August 2002, Respondent and Joseph Esposito entered into a business relationship wherein Respondent worked part-time as a supervisor for Turn Maintenance Services, Inc., a business owned by Joseph Esposito. It is unclear, and subject to conflicting testimony, as to whether or not Respondent had an ownership interest in the company. Respondent had signature authority on the company checkbook and had two trucks placed in his name to provide security for loans for business expenses. The evidence suggests that Respondent had supervisory and management responsibility in this business until his relationship with Joseph Esposito deteriorated. In October and November 2005, Respondent was sued as a defendant in two civil lawsuits: Turn Maintenance Services, Inc., et. al. vs. Peter Wicher, Osceola Circuit Court Case No. 2005-RC 002211, and MWA Construction, LLC v. Peter Wicher, Osceola Circuit Court Case No. 2005-CL 003106. Respondent maintains that these lawsuits are a result of fraudulent allegations made by Joseph Esposito and has filed counterclaims in both cases. Much of the testimony in the instant case is denominated by personal animosity, previous bad business relationships, personal bias, and self-interest. The credibility of several witnesses is in question. Much of the controversial testimony is subjective and uncorroborated. Testimony regarding intimidation and threats of arrest attributed to Respondent are discounted by the undersigned. On April 26, 2006, Joseph Esposito filed an internal affairs complaint against Respondent with the Osceola County Sheriff's Office. In May 2006, Respondent undertook an investigation of Joseph Esposito and his business practices. Respondent took written statements from several witnesses, three of whom, Wayne Liebnizky; Wallace McCommon, Jr.; and George Garrido, Jr., testified in the instant case regarding their personal and business involvement with Mr. Esposito. A fourth statement was made by John Lina, who was on active duty in Kuwait. Shannon Lina, his wife, testified. These statements are on Osceola County Sheriff's Office statement forms and state that each is "Sworn To and Subscribed Before Me [Respondent]" in his capacity as a deputy sheriff. The use of Osceola County Sheriff's Office witness statement forms demonstrates poor judgment, but does not rise to the level of clear and convincing evidence of an abuse of authority. The Osceola County Sheriff's Office has a delineated protocol to be followed by a deputy sheriff in a criminal investigation. There is a division of responsibility between patrol officers and detectives. Patrol officers, which Respondent was, do initial on-the–scene investigations and, then, turn the incidents of criminal activities over to the Criminal Investigations Division and its detectives for more detailed investigations. Each investigation is assigned a case number. A deputy sheriff would not be authorized to conduct an investigation where he was a victim. Respondent was not authorized by the Osceola County Sheriff's Office to conduct a criminal investigation of Joseph Esposito's business activities. While it is clear that Respondent obtained the statements from the various witnesses, supra, no definitive evidence was presented regarding Respondent's conduct of personal business in uniform and under color of authority. Even though each of the persons who gave written statements knew that Respondent was a deputy sheriff, which is not surprising since these individuals were friends or business acquaintances and Respondent's 19 years of service, this is not clear and convincing evidence of the particular allegations. During the internal investigation conducted by the Osceola County Sheriff's Office incidental to Joseph Esposito's complaint, Respondent stated, under oath, that the interviews of Wayne Liebnizky; Wallace McCommon, Jr.; George Garrido, Jr.; John Lina; and George Jairala were for a criminal investigation. To the contrary, the interviews and investigation were undertaken by Respondent as a result of the filing of the civil lawsuits and the complaint by Joseph Esposito that initiated the internal investigation. The NCIC/FCIC maintain databanks which are accessible to law enforcement personnel to assist them in their professional responsibilities. Access for personal reasons is prohibited. During the internal investigation conducted by the Osceola County Sheriff's Office, Respondent stated, under oath, that he accessed the FCIC databank to determine the ownership of certain motor vehicles incidental to one of the civil lawsuits noted above. Respondent acknowledged that the use of the FCIC databank was for personal reasons, even though there was no independent evidence to support that conclusion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Peter E. Wicher, be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes; and that Respondent's law enforcement certification be disciplined by a reprimand and suspension for two years, followed by two years' probation, subject to terms and conditions imposed by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2007.
Findings Of Fact In 1971, Respondent became a state trooper with the Tennessee Highway Patrol. The other troopers introduced him to Mrs. Gary and advised him to use Gary's Garage for towing and wrecker service when he was working in that area, as they did, because Mrs. Gary gave the troopers gifts and allowed them to use her garage for work on their personal automobiles and provided them with free parts. Respondent became friendly with Mrs. Gary, and she began giving him clothing and food, as she did the other troopers, to show her gratitude for their calling her tow truck concern to haul away cars involved in accidents in her area. Mrs. Gary was not obligated to pay Respondent for referring cars to Gary's Garage, nor was Respondent obligated to refer cars to that garage. About the time that Respondent refused to support a political candidate endorsed by Mrs. Gary and also became involved with a new girlfriend, Mrs. Gary told Respondent to stop by her garage to pick up his Christmas present. She told him that if she were not there when he came by, his present would be in the top drawer of her desk. Respondent went to Gary's Garage to pick up his present while he was on duty. Mrs. Gary was not there, and Respondent looked in the top drawer of Mrs. Gary's desk. He found an envelope with his name on it. He took the envelope and left. He later opened the envelope and removed the three $20 bills he found in it. His hands turned green from the ink on the bills. He panicked and threw the money out the car window. Respondent received a call from the Captain telling him to return to the station. When he arrived there, the Captain asked him if he took money from Gary's Garage. When he admitted he did pick up his Christmas present, he was arrested. Based upon Mrs. Gary's allegations, Respondent was indicted on January 26, 1972, and charged with larceny and concealing stolen property in the amount of $577. Based upon the advice of his attorneys, Respondent pleaded guilty to petty larceny, a misdemeanor. On June 2, 1972, he was sentenced to a term of 11 months and 29 days, which sentence was suspended, and Respondent was placed on five years probation. With the permission of his parole officer, Respondent left Tennessee and moved to Florida. Respondent was hired by the Homestead Police Department in June or July, 1973. He attended and completed training at the police academy. On September 28, 1973, he was issued his certification as a Law Enforcement Officer by the State of Florida. Respondent worked as a Law Enforcement Officer with the Homestead Police Department for six and one-half years without receiving even a reprimand. While employed there, he completed his term of probation. In October, 1979, Respondent married a lady who was formerly married to the vice-mayor's nephew. After six weeks, she left Respondent for her exhusband. Her parents involved themselves in the marital problems and pressured the Homestead Police Department to investigate Respondent. The Chief agreed to suspend Respondent with pay while an investigation was conducted, but Respondent resigned on January 3, 1980, rather than be subjected to such politics. Charles T. Renegar has been in law enforcement for 36 years and is the Chief of Police of the Hialeah Gardens Police Department. Respondent was recommended to him by one of Respondent's former superiors at the Homestead Police Department. Respondent was employed as a Law Enforcement Officer by the Hialeah Gardens Police Department on September 22, 1980. He took the sergeant's examination on December 2, received the highest grade on the examination and was promoted to sergeant on December 17, 1980. In June, 1981, Respondent received the third highest grade on the lieutenant's examination. Respondent's certification became automatically inactivated while he was between employment by the Homestead Police Department and the Hialeah Gardens Police Department. His request for activation of his certification after he joined the Hialeah Gardens Police Department has been held in abeyance pending the outcome of this proceeding. Although Chief Renegar ran the police academy as its nighttime coordinator for 14 years, he never met a more sincere and dedicated police officer than Respondent. During the short time Respondent was working for the Hialeah Gardens Police Department, he received the Optimist Club Award as officer of the quarter. He is highly regarded in the Hialeah community. Renegar has held Respondent's sergeant's position open for him and considers Respondent in line for a lieutenant's position. Renegar flew with Respondent at his own expense to a full evidentiary hearing before the Tennessee Clemency Board. On February 19, 1982, Respondent was pardoned by the Governor of the State of Tennessee of his misdemeanor conviction of petty larceny. Respondent's guilty plea to the misdemeanor of petty larceny is the only obstacle to active recertification of Respondent's Certificate of Compliance #02-8832 by the Petitioner. The undisputed facts of the matter which resulted in Respondent's guilty plea to petty larceny involved accepting gratuities and did not involve theft, embezzlement or larceny.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: A final order be entered dismissing the Administrative Complaint against Respondent Ronald Lee Dunn and activating his Certificate Number 02-8832 as a Law Enforcement Officer in the State of Florida. DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1982. COPIES FURNISHED: Percy W. Mallison, Jr., Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Terrence J. McWilliams, Esquire 1999 SW 27th Avenue Miami, Florida 33145 G. Patrick Gallagher, Director Criminal Justice standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO. 81-3053 RONALD LEE DUNN, Respondent. /
The Issue Did the Respondent commit any of the following alleged acts contrary to law, and, thereby, fail to maintain the good moral character required of a certified police officer: Using of attempting to use official position, property, or resource in his trust to secure special benefit; Requesting, soliciting, or accepting a pecuniary or other benefit not authorized by law for past, present or future performance; or violation of any act or omission the public servant represents as having been either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty; Unlawfully, willingly, and knowingly, without authorization, accessing a computer and thus committing any offense against computer users; and Unlawfully and knowingly making a false statement concerning material matter to members of the Tallahassee Police Department during an internal investigation with the intent to mislead said members in regards to his unauthorized access of criminal history information and his attempt to barter same for sexual favors.
Findings Of Fact Willie J. Mitchell was certified as a law enforcement officer by the Criminal Justice Training and Standards Commission on April 20, 1988, and holds certificate number 16-88-002-01. The Respondent, Mitchell, was certified at all times relevant to the Administrative Complaint in this case. Mitchell was employed by the City of Tallahassee Police Department as a patrol officer for approximately three years, and then assigned as an investigator to the Criminal Investigations Division (CID), where he worked until his discharge. Pursuant to his duties in CID, Mitchell was authorized to access the National Criminal Information Center (NCIC) and Florida Criminal Information Center (FCIC) via computer terminals. The policies of the Tallahassee Police Department limited inquiries to the subjects of official investigations of the Tallahassee Police Department. Investigative activities by officers of the Tallahassee Police Department were limited to official cases opened by the department according to its policies. Until this incident, the Respondent had a good reputation in the department for the quality of his work, his attitude, and his integrity. Michelle Worley, born in January 16, 1972, was an explorer scout with the Tallahassee Police Department in 1991 and 1992. Police explorer scouts are issued uniforms, go through an academy for police training, and perform various duties to include radio dispatch and riding with sworn officers on duty. Ms. Worley was a police "groupie", and was rumored to have had sexual relations with several officers in the Tallahassee police department and sheriff's department prior to coming to the police department. Because of these rumors, she was counseled by the explorer leaders to limit her activities and relationships with officers to strictly an official basis or to leave the explorer program. She left the explorer program in October 1992 because she was pregnant. Ms. Worley, while in the explorer program, asked to be assigned to work with the Respondent. She frequently called the Respondent when she was not at the police station, and it was rumored that the Respondent and Worley had a personal relationship. She gave the Respondent a pinup type photograph of herself semi-nude. In November 1992, Ms. Worley commenced a relationship with Officer Eddie Forsberg. At the time of the hearing, they were engaged. In late 1992 or early 1993, Worley advised Forsberg that while working with the Respondent, Ms. Worley had come across the name of Salvatore Secundo, a person who Ms. Worley's sister was dating. She told Forsberg that she asked the Respondent if she could see Secundo's file which was maintained in the office in which she was working. She told Forsberg that the Respondent had subsequently provided her Secundo's files in return for sexual favors. She told Forsberg that she had not wanted to have sex with the Respondent, but that she had given in to his demands when he made the information on Secundo available to her. However, she did not take the information with her, and later denied to Sgt. Parsons having had sex with the Respondent. Forsberg questioned Worley about this incident again and again, and attempted to convince her that she needed to report this matter to the police department. She generally wanted to leave matters alone, and not pursue any complaint against the Respondent. In late November 1992, Forsberg arranged to see retired Deputy Chief of Police Bill Scott about the allegations which Ms. Worley had made. Scott, who was friend of Ms. Worley's grandmother, met with Forsberg because he thought Forsberg wanted to talk about Forsberg's relationship with the young woman. When he learned the real purpose of the visit and of Forsberg's desire to commence an investigation of the matter, Scott unequivocally advised Forsberg not to become involved personally, but that he would talk to Chief Tucker about the matter when he saw him. After talking with Scott and contrary to his advise, Forsberg told Worley that Scott had said they needed to obtain evidence against the Respondent. Forsberg convinced Worley to ask the Respondent to provide information again about Secundo to see if he would offer it in exchange for sex. In furtherance of this plan, Forsberg obtained a tape recorder and a car with a hatchback in which he could hide and overhear a conversation. He and Worley worked out what she should say to obtain the evidence he was seeking. Pursuant to this plan, Worley called the Respondent and arranged to meet him in the parking lot of a local K-Mart store so that she could speak with him privately. Forsberg listened in on her telephone conversation with the Respondent, but testified that he did not record the conversation. He then hid a tape recorder on Worley's person, and hid himself in the back of the car when Worley drove to the K-Mart parking lot close to police headquarters to meet the Respondent. The purpose of this activity was to obtain evidence to support the allegations that the Respondent had provided NCIC data to Worley in exchange for sexual favors. Worley met with the Respondent, who arrived in his police car alone at the meeting place. Worley directly asked the Respondent to provide her with NCIC data on Secundo. The Respondent asked her who Secundo was, and why she wanted the information. In furtherance of the plan to obtain evidence against the Respondent, Worley told him that her sister was seeing Secundo, that Secundo was selling drugs, and that she was afraid for her sister. She reminded the Respondent that he had investigated Secundo earlier. She gave him identifying data on Secundo, and he said he would check and get back with her the next week when he returned to town. Forsberg caused Worley to tape this conversation without the Respondent's knowledge. Within a short time after their meeting and at the continued urging of Forsberg, who had not been satisfied with Worley's handling of the meeting because of her inability to obtain damning admissions or statements from the Respondent, Worley called the Respondent back and advised him that she needed the information right away. Again, the Respondent told Worley he would get back in touch with her. Forsberg testified that he did not tape this conversation. Worley called the Respondent a third time later that evening, and Forsberg taped this conversation without advising the Respondent that he was recording the conversation and without the Respondent's permission. The Respondent advised Worley that the information which she sought was not available because it had been purged from the records, and that he could not get it for her. It is alleged that the Respondent thereafter offered to provide the material to Worley for sexual favors. The transcript of Ms. Worley's testimony regarding the alleged offer in this conversation is as follows: Transcript Page 161 & 162: By Mr. Lober: Q: What did he tell you about the criminal history, if anything? A: That it was purged, closed. Q: I'm sorry. Purged? A: Purged. Q: Okay. What else? A: That he couldn't run it because it was sealed. Basically, that's all. Q: In mentioning that it was sealed, did he indicate whether or not he was able to give it to you? A: He indicated that he couldn't give it to me. Q: Despite him telling you he couldn't give it to you, did he offer to give it to you: A: Yes. Q: Take your time. Just nice and slow. What were the terms that he was offering to provide you the criminal history? What was he -- A: How bad do you want it. Q: And, when he used the word, "it", "how bad do you want it," is he referring to the criminal history record of Salvatore Secundo? A: No. Q: What was he referring to? A: Sex Forsberg took the tapes he had made to retired Deputy Chief Scott, and Scott again advised him not to become personally involved. Scott said he would advise Chief Tucker about the matter the following Monday when Scott and Tucker were scheduled already to meet. Scott did bring the matter to the Chief's attention, and the Chief assigned the matter to the department's internal affairs section to investigate. After the investigation was referred to internal affairs, Sgt. Parsons conducted an interview of the Respondent, and asked him if he had offered to provide information to Worley in return for sexual favors. The Respondent denied this, but admitted to Sgt. Parsons, after listening to the tapes, that it could be interpreted as being an offer to exchange the information for sex. The charge of making a false official statement is based upon alleged contradictions between the Respondent's comments to Sgt. Parsons and this third telephone conversation which Forsberg illegally taped. No information was provided by the Respondent to Worley, and it is not alleged that information was exchanged. A secretary who had worked in the Criminal Investigation Division for many years testified concerning the actual security practices surrounding NCIC information. It is supposed to be accessed only for official investigations; however, this requirement is honored in the breach by employees of the department who obtained information unofficially. Based upon the illegally recorded tape, the Respondent was discharged from his position with the police department by the City. Sgt. Parson's based her investigative conclusions that the Respondent violated policies and statutes based upon her review of the tape illegally made by Forsberg.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Criminal Justice Standards and Training Commission dismiss the charges against the Respondent. DONE and ENTERED this 22nd day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 22nd day of November, 1994.
Findings Of Fact Each Respondent holds a Class "B" Watchman, Guard, or patrol Agency License number BOO-00847 and has held such licensure at all relevant times. All references to Respondent are to Murrell security Patrol, Incorporated. All references to Respondent Murrell are to Alfred L. Murrell. Respondent's main office was at all relevant times in Melbourne, Florida. In August, 1986, Respondent leased office space for a branch office in Orlando, Florida. Respondent hired Lee Hayes as branch manager for the Orlando office. Mr. Hayes worked for Respondent from early September, 1986, until mid-January, 1987. Shortly after beginning to work for Respondent, Mr. Hayes and Respondent applied to Petitioner for, respectively, a Class "MB" branch manager's license and a Class "BB" branch office license, which were subsequently issued. Following Mr. Hayes' departure, the managerial duties of the Orlando branch office were in large part performed by Gerald Bellizzi, who supervised guards on patrol, solicited guard business, billed accounts, and collected receivables. Mr. Bellizzi had no Class "MB" license, nor any other license under Chapter 493 until he obtained, in late December, 1986, a Class "D" license, which allowed him to perform watchman, guard, or patrol duties. Respondent provided Mr. Hayes, while he served as manager of the Orlando branch office, business cards to be used in soliciting business. These cards stated that Respondent's business included investigations, in addition to guard and patrol duty. At the same time, Respondent placed an advertisement in the Southern Bell Yellow Pages in the Orlando area. The ad stated that Respondent's services included investigations. Although the Orlando branch office never performed any investigations, Mr. Hayes received two inquiries concerning the possibility of Respondent performing investigative services. In responding to the first inquiry, Mr. Hayes contacted Respondent Murrell and, with his permission, quoted an hourly rate for investigative work. In both cases, the prospective customers never asked Respondent to do any work. At all times since the incorporation of Respondent in 1976, Respondent Murrell has been its president and his son, Mike Murrell, has been Respondent's vice president.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents Alfred L. Murrell and Murrell Security Patrol, Incorporated, not guilty of the charges contained in Count III of the Administrative Complaint, but guilty of the charges contained in Counts I and II. It is further recommended that the Final Order impose an administrative fine upon respondents, jointly and severally, in the amount of $500. DONE and RECOMMENDED this 15th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1760 Treatment Accorded Petitioner's Proposed Findings 1-3. Rejected as not finding of fact. 4a. Adopted. 4b,c. Rejected as irrelevant. First sentence adopted. Remainder rejected as recitation of testimony. Rejected as recitation of testimony and subordinate. Rejected as recitation of testimony and, in view of the nonspecificity of allegations in Count III, irrelevant. 8. Rejected as recitation of testimony and subordinate. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol Tallahassee, Florida 32399-0250 John C. Murphy, Esquire 1901 South Harbor City Boulevard Suite 805 Melbourne, Florida 32901 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 181 The Capitol Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether, on December 29, 1997, Respondent, a licensed massage therapist, engaged or offered to engage a client in sexual activity while practicing massage therapy, in violation of Section 480.0485, Florida Statutes, and Rule 61G11-30.001(1)(d), Florida Administrative Code (1997).
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties Keys is a Florida-licensed massage therapist. Her license, numbered MA 19097, was issued on March 27, 1995. She is subject to the regulatory and disciplinary jurisdiction of the Board. At all times material, Keys worked at Shogun Health Spa, Inc. ("Shogun"), which was located in Lauderhill, Florida. The Charge The Department has charged Keys with one count of engaging or offering to engage a client in sexual activity, in violation of Rule 61G11-30.001(1)(d), Florida Administrative Code (1997).1 The incident is alleged to have occurred at Shogun on December 29, 1997. The "client," allegedly, was an undercover sheriff's detective. Ultimate Factual Determination The Department proved that on December 29, 1997, on the premises of Shogun, a white, brown-haired masseuse using the name "Debbie" offered sexual services to an undercover detective who was posing as a client in connection with an investigation of suspicions that Shogun was a bordello. Based on the evidence in the record, however, the factfinder is unable to form a firm belief or conviction, without hesitancy, that "Debbie" was, in fact, Keys. Therefore, Keys is not guilty of the offense charged. It will be seen that the foregoing factual determination, which is dispositive, does not constitute an affirmative finding about what Keys did on the date in question. Nor is a finding made here regarding who "Debbie" actually was—— or that "Debbie" was not Keys. Although Keys argued that she was not at work on December 29, 1997, being instead, she claimed, on vacation, she adduced no evidence that she was someplace else that day, and so no affirmative finding can be made in this regard. The Department's failure to prove, clearly and convincingly, that "Debbie" and Keys were one and the same person necessarily renders all of the other evidence irrelevant, because it is immaterial that someone besides Keys engaged in misconduct. Understanding, however, that it may be enlightening to explicate what the evidence showed as a means of explaining how the evidence fell short of establishing the wrongdoer's identity by the requisite quantum of proof, the following summary of the pertinent proof, as viewed by the factfinder, is offered.2 Keys' Physical Description and Identifying Information: A Baseline According to the Application for Licensure that Keys submitted in January 1995, Keys is five feet, three inches tall with blue eyes. Her weight, at that time, was 131 pounds. She was born on November 25, 1956. Keys' social security number is disclosed in the application. A photograph of Keys was attached to the application. The original was probably a color picture, but the copies introduced in evidence (four copies are included in Petitioner's Exhibit 1) are black and white. The photograph is grainy from being reproduced more than a few times. Nevertheless, the image of a woman's face is sufficiently visible that anyone familiar with Keys' appearance should be able to tell that it is her. To everyone else, the photograph depicts a white female adult of indeterminate age with long, dark hair. The descriptive data from Keys' application is considered to be highly reliable because it was put together nearly three years before the incident in question, at a time when Keys had no discernable motive to be untruthful. Moreover, Keys signed the application before a notary public under a certificate that provided, in part, as follows: I have carefully read the questions in the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein are true and correct and that the photograph attached to the application is a photograph of me. Should I furnish any false information on this application, I understand that such action shall constitute cause for the denial, suspension or revocation of any license to practice in the state of Florida the profession for which I am applying. (Emphasis added). The Department's Evidence The "Event Report." Detective Edward Domako of the Broward Sheriff's Office was involved in the undercover investigation of Shogun. Through Detective Domako, the Department introduced a one-page exhibit which he described as a Broward Sheriff's Office event report. This undated document contains information about two "arrestees," one of whom is "Debbie Lynn Keys." In response to a leading question from the Department's counsel, Detective Domako agreed that he had prepared this report around January 5, 1998. On cross- examination, however, the detective admitted that he had never personally been involved with Keys. It is undisputed that the information set forth in this event report was not based on Detective Domako's personal knowledge. Rather, he claimed to have taken the data from another detective's probable cause affidavit, which is discussed below. Detective Domako also testified that "some of this information [in the event report] may have been garnered from" Keys herself, but this statement has been given no weight because (a) the witness was simply speculating and clearly did not know one way or the other if he were correct and (b) no other evidence corroborated his speculation. In this event report, Keys is described as a white female, five feet, three inches tall, 136 pounds, with long, straight, brown hair, blue eyes, and no visible scars, marks, tattoos, or deformities. A residence address is listed which matches her known address at the time. The description of Keys in the event report is similar to that contained in her application for licensure. The problem, however, is that the information in the event report is not consistent with the description of Keys contained in the probable cause affidavit from which Detective Domako asserted he had derived the data. See Paragraph 29, infra. Ironically, the undated event report prepared by a detective without personal knowledge concerning Keys' physical appearance is the only piece of evidence that the Department offered which matches the description of her found in the Department's application file. Because Detective Domako was plainly mistaken about the source of the information he put in the event report; because the event report was not based on the preparer's personal knowledge; and because the undated report was based not on information provided by someone who allegedly had seen Keys engage in the alleged misconduct (for that witness described her differently) but instead upon information acquired after-the- fact from a source or sources unknown, Detective Domako's testimony and the event report are unreliable proof of Keys' identity as the wrongdoer. Hence, this evidence has little or no probative value and is certainly not clear and convincing proof that Keys engaged in the alleged misconduct on December 29, 1997. Officer Ho's Testimony. Jimmy Ho is a police officer with the City of Lauderhill. Officer Ho was involved in the undercover investigation of Shogun. Officer Ho was present at Shogun on January 5, 1998, when detectives from the Broward Sheriff's Office executed a search warrant on the premises. He was there to assist the sheriff's detectives and described his role as that of "spectator." Officer Ho detained several suspects in a room at Shogun. He claimed that Keys was one of the detainees, and that she had identified herself to him by providing her driver's license, which he reviewed to make a positive identification at the time. Neither Officer Ho nor anyone else at the scene on January 5, 1998, however, bothered to make a copy of the driver's license supposedly tendered by "Keys." No one took "Keys'" fingerprints or photograph either. Officer Ho had not seen "Keys" before January 5, 1998. At no time did he observe her performing or offering to perform any improper acts. Asked at hearing to describe "Keys," Officer Ho testified: "All I can remember, she's a white female, that time, short hair. . . . I think [her hair] was brown color [and not blonde]. . . . I'd say she was somewhere between five [feet]-three [inches] and five [feet]-four [inches tall]." Final Hearing Transcript ("T.") at pp. 107-08. The facts to which Officer Ho testified regarding "Keys'" appearance were not distinctly remembered; his recollection was neither precise nor explicit. Undoubtedly hundreds if not thousands of women in Broward County would satisfy "Keys'" physical profile as generally described by Officer Ho. Moreover, incidentally, his testimony that "Keys'" hair was short does not match the description in Detective Domako's event report, where she is said to have long hair. For these reasons, Officer Ho's testimony is minimally useful at best. Moreover, even if Officer Ho's testimony clearly and convincingly proved that Keys was present at Shogun on January 5, 1998, that fact would not establish, even by a preponderance of evidence, that Keys engaged in the alleged misconduct on December 29, 1997. The Investigative Action Report. Detective Steven Drum of the Broward Sheriff's Office, who was involved in the undercover investigation of Shogun, was the Department's key witness. He is, in fact, the one and only witness to the alleged sexual misconduct that Keys is charged with having engaged in on December 29, 1997. Detective's Drum's account of his visit to Shogun on December 29, 1997, is set forth in an Investigative Action Report that he prepared on January 5, 1998. In his report, Detective Drum recounted a one-hour massage session with "Debbie" who, he claimed, had offered to perform various sexual services. According to Detective Drum's report, "Debbie" was a white female in her mid-30's with brown hair, brown eyes, and a medium build. The Probable Cause Affidavit. Detective Drum wrote a summary of his December 29, 1997, encounter with "Debbie" in a probable cause affidavit signed January 6, 1998. In his probable cause affidavit, Detective Drum described "Debbie" as a white female with brown hair, brown eyes, five feet, six inches tall, with no visible scars, marks, or tattoos. The affidavit contains Keys' social security number and date of birth. Detective Drum's Testimony. At hearing, Detective Drum's testimony regarding the December 29, 1997, incident closely followed the Investigative Action report and probable cause affidavit. Asked to describe Keys, Detective Drum responded: "She's a white female, approximately five-six, medium build with brown hair." T. 144. Detective Drum testified that he saw "Debbie" again at Shogun on January 5, 1998, when the search warrant was served, and that "Debbie" identified herself to him as Keys. He testified that there was "no doubt" in his mind that the woman who identified herself as Keys on January 5, 1998, was the "Debbie" who had offered him sexual services on December 29, 1997. The factfinder, however, has considerable doubt that Detective Drum possessed any meaningful present recollection either of "Debbie's" appearance or his encounter with her nearly four years ago. The details of his testimony obviously were drawn from the written documents he had prepared contemporaneously. Significantly, moreover, Detective Drum did not mention in either the Investigative Action Report or the probable cause affidavit that on January 5, 1998, the woman he now has no doubt was "Debbie" had told him her name was Deborah Keys——a fact that, had it occurred, would or should have been worthy of note. Taken as a whole, Detective Drum's testimony does not convincingly link Keys to the December 29, 1997, incident. He described "Debbie" contemporaneously as having brown eyes——but Keys' eyes are blue. He also wrote, soon after the alleged misconduct, that "Debbie" was five feet, six inches tall; Keys, however, is a material three inches shorter than that. Detective Drum is an experienced law enforcement officer whose business it is to observe details about suspected perpetrators. It is telling, therefore, that he was mistaken about two obvious details concerning Keys' appearance. Given that there were only a few physical characteristics with which to work in this case (hair color and length, eye color, height, weight, age), and most of them subject to change, Detective Drum's failure to identify accurately two relatively immutable characteristics of Keys was sufficient to render his testimony that the "Debbie" of December 29, 1997, was the "Keys" of January 5, 1998, less than clear and convincing.3 Other Considerations The factfinder found it striking that the Department made relatively little effort to identify Keys conclusively as the wrongdoer. It would have been a simple matter to have subpoenaed her for the final hearing, so that a definitive identification could be made, or, failing that, to have obtained photographs or videotapes of her during discovery upon which a persuasive in-hearing identification could be based. The Department's failure to take these or similar steps toward meeting its heavy evidential burden——particularly given the paucity of information that it had concerning Keys' appearance, about which nothing unique or distinguishing was elicited—— reflected negatively on its entire case. But worse than that, the Department did not show to a single witness the one photograph of Keys that it did have in its possession, and which it introduced into evidence. If, for example, Detective Drum had testified that the woman in the picture attached to Keys' Application for Licensure is "Debbie," then the Department might have proved its case; at least the decision would have been closer. But Detective Drum was not asked to identify the photograph of Keys. Because the Department knew that it had this photograph of Keys, its failure to question Detective Drum (or anyone else) about the picture is inexplicable——unless the detective could not identify the photograph and therefore his answer to the obvious question would not have been helpful. In this case, where the accused was not physically present at hearing and the only eyewitness to the alleged misconduct described her inaccurately and was not asked to identify an available photograph, the Department's heavy burden of proof has not been met; to find otherwise, the factfinder, in effect, would need to assume that the right person was charged, which he will not do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department having failed to prove the charges brought against Keys by clear and convincing evidence, it is RECOMMENDED that the Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2001.
The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
The Issue The issues in the case are whether the allegations of the Administrative Complaint are true, and, if so, what disciplinary penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was certified by the Petitioner as a law enforcement officer, holding certificate 267907. At all times material to this case, the City of Sarasota, Florida, employed the Respondent as a law enforcement officer. On the night of January 4, 2010, the Respondent was on duty, riding in a patrol car driven by her work partner, Officer Coppinger. The patrol car contained a laptop computer that was connected to the Florida Driver and Vehicle identification Database (DAVID), a law enforcement database. The DAVID system is not accessible to the public. At the time of logging into the DAVID system, users are advised by a warning screen that the system is restricted to authorized personnel for appropriate law enforcement purposes. Usage of the system for personal purposes is specifically prohibited. An officer accessing the DAVID system must affirmatively acknowledge an understanding of the usage policy prior to initiating research. On the night of January 4, 2010, Officer Coppinger was logged into the DAVID system. The laptop computer is available to both officers in the patrol car. While on duty, the Respondent received a telephone call from her cousin, "Whizz," who told the Respondent of an alleged threat of arson against the Respondent's family by a man identified as "Terrance Bryant." The Respondent did not report the threat to Officer Coppinger or to any other law enforcement officer or agency. Instead, the Respondent immediately accessed the DAVID system in an effort to identify Terrance Bryant's residential address. The Respondent was sufficiently familiar with Terrance Bryant to use a variety of family names and spellings in the search. The Respondent also used information about Terrance Bryant's girlfriend, with whom the Respondent was also familiar, to the extent that the girlfriend had listed the Respondent as a reference on her own application for employment with the Sarasota Police Department. After extensive research in the DAVID system on January 4, 2010, the Respondent obtained the residential address for Terrance Bryant. The Respondent and Whizz met on January 5, 2010, at the Respondent's home to handle some household errands. The Petitioner asserts that the Respondent provided Terrance Bryant's residential address to Whizz at that time. The evidence is insufficient to clearly establish how Whizz obtained the address, but, by the time Whizz left the Respondent's home on that date, he possessed Terrance Bryant's residential address.
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 suspending the Respondent's correctional certificate for two years. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 19th day of April, 2012.
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
