The Issue The issue is whether Respondent committed the offense alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the exhibits received into evidence and the testimony of the witness at the hearing, the following findings are made: Respondent was certified by Petitioner as a correctional officer on June 8, 2004, and issued Certificate No. 241081. At all times relevant to this proceeding, Officer Cooper was a traffic homicide patrol officer with the Cocoa Beach Police Department, Cocoa Beach, Florida. On the evening of June 24, 2005, while on duty, Officer Cooper observed a vehicle that was speeding and driving without headlights. Officer Cooper then had the driver of the vehicle to pull over to the side of the road. Once the vehicle pulled over and stopped, Officer Cooper approached and made contact with the driver of the vehicle and Respondent. Respondent was in the right front passenger seat of the vehicle. Officer Cooper smelled a strong, very distinct odor of burnt cannabis (marijuana) coming from inside the vehicle when he made contact with the driver. The driver of the vehicle admitted to smoking marijuana inside the vehicle. Officer Cooper approached the passenger side of the vehicle and asked Respondent to step out of the vehicle. When Respondent stepped out of the vehicle, Officer Cooper observed a clear plastic bag containing marijuana on the ground next to the passenger side of the vehicle. The outside of the plastic bag was dry, even though it had just rained. Officer Cooper arrested Respondent and charged her with constructive possession of a controlled substance, a violation of Subsection 893.13(6)(b), Florida Statutes. Respondent never denied possession of the marijuana. In fact, she told Officer Cooper that she "made a big mistake, a very big mistake." Subsequent to Respondent's arrest, Officer Cooper asked Respondent if that was the last bit of "weed" that she had, and Respondent replied, "Yes sir, it was." Officer Cooper videotaped the traffic stop.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order revoking the law enforcement certificate of Respondent, Michelle A. Liquori. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 15th day of July, 2008.
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Lawrence was, at all times pertinent to this case, a teacher with the Orange County Public School System. For about two years, and including the months of March, April and May, 1977, Lawrence's responsibilities included supervision of the work experience program at the Green House, Inc., an alternate school program. The Green House is a joint effort between the Orange County school system and a private community agency designed to provide special training for socially maladjusted children. The work experience program at the Green House gives the students insight into job opportunities through interviews, placement assistance and shadowing (the observation by the students of people actually working on the job). As part of his duties, Lawrence set up job interviews, placement and shadowing trips and then transported the students to their appointments. It would regularly happen that Lawrence and a student would travel together alone in Lawrence's car around the Orange County environs. It was alleged that the improper advances were made during such trips in March, April and May, 1977. However, as previously stated, Lawrence's testimony is accepted as accurate and it is found that no improper advances or contact occurred.
The Issue The issue in this case is whether Respondent owes Petitioner money on a citrus contract and, if so, how much.
Findings Of Fact Petitioner owns citrus groves in Wauchula and one is near Zolfo Springs. Due to its proximity to a homesite, the latter grove is called the homeplace grove. Respondent operates a citrus packinghouse and a small retail outlet for citrus. On October 7, 1994, Petitioner and Respondent entered into a contract under which Petitioner agreed to sell to Respondent naval oranges at the price of $6 per box on the tree. Petitioner insisted on the contract and supplied the form. The contract states that the fruit "will be picked by Dec. 20, 1994." This is handwritten in the blank space for quantity of fruit. Elsewhere the contract provides a space for a completion date for picking, but this space is left blank. The contract adds: "However, notwithstanding the foregoing provision, Buyer, at its sole discretion[,] shall determine the dates and times for accomplishing the picking, loading, or hauling of said fruit." The contract notes that there are an estimated 3000 boxes at the Wauchula grove and an estimated 500 boxes at the homeplace grove. The contract states: Buyer shall only be required hereunder to accept delivery of the estimated quantity of fruit set forth herein; however, Buyer may, at its sole option, elect to accept delivery of all fruit grown or being grown at the grove locations described above at the prices specified herein. After signing the contract, the price of navel oranges dropped considerably. Also, Respondent had been relying on a third party to purchase much of the fruit from him, but the third party did not do so. Through December 9, 1994, Respondent took delivery on 1662 boxes of navel oranges. Petitioner picked the first 820 boxes, for which Respondent paid an additional, agreed-upon $2 per box. Respondent picked the remainder of the 1662 boxes, for which Respondent paid $11,612, pursuant to the contract. Petitioner became increasingly concerned with Respondent's slow progress. They agreed to reduce the price to $5 per box for 60 boxes picked on December 13, 1994, and then $4 per box for 360 boxes picked after the December 20 picking date stated in the contract. Pursuant to their new agreement, Respondent paid $300 for the 60 boxes picked on December 13, 1994, and $1440 for the remaining 360 boxes picked between December 27, 1994, and January 11, 1995. Believing that Respondent was obligated to take the entire output from the two groves, which proved to be a total of 4232 boxes, Petitioner's principal concluded that Respondent could not meet its contractual obligations. Without notice to Respondent, Petitioner agreed with Mt. Dora Growers Cooperative to pick the remaining fruit. The growers coop picked 920 boxes on January 11, 1995, 900 boxes on January 12, 1995, and 330 boxes on January 16, 1995. For a total of 2150 boxes, the growers coop paid Petitioner $498.84, or $0.23 per box. Petitioner had better luck with the homeplace oranges. By contract dated January 24, 1995, again without notice to Respondent, Petitioner sold 500 boxes of navel oranges to Keith Watson, Inc. for $2 per box. Respondent took delivery of 1220 boxes in October, 122 boxes in November, 320 boxes through December 9, 380 boxes at reduced prices for the rest of December, and 40 boxes in the first 11 days of January. This declining trend suggests problems. However, this fact alone does not prove an anticipatory breach by Respondent. Nothing in the record establishes Respondent's intent to repudiate the contract. There was still time for Respondent or, more likely, a third party to pick the remaining boxes for which Respondent was liable (1418). The growers coop removed 1820 boxes in two days. Also, the price and urgency of the growers coop sale are undermined by the sale two weeks later of 500 boxes at $2 per box.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint. ENTERED on July 7, 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 July 7, 1995. COPIES FURNISHED: W. Ralph Durrance, Jr. P.O. Box 5647 Lakeland, FL 33807-5647 Gary Whidden Whidden Citrus & Packinghouse, Inc. 396 Country Road 630A Frostproof, FL 33843 Florida Farm Bureau General Insurance Company P.O. Box 147030 Gainesville, FL 32614-7030 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact Cheryl Nascimento is an officer of the Petitioner, I Can Do, Inc. Ms. Nascimento is an honest, hardworking, and sincere person. She is dependable as an employee and has a reputation in the community for honesty. Ms. Meyerholz has known Ms. Nascimento for approximately seven years on a personal basis and never during that time observed any evidence of dishonesty in Ms. Nascimento and never heard in the community of any evidence of dishonesty on the part of Ms. Nascimento. Ms. Meyerholz described Ms. Nascimento as "beyond reproach in her integrity". Ms. Meyerholz also described Ms. Nascimento as an honest, sincere and good person. Mr. Curtis O'Neal, a public accountant, has known Ms. Nascimento for approximately six years and has dealt with her in a business relationship. Mr. O'Neal also testified that during the time that he has known and worked with Ms. Nascimento, he had contact with her once or twice a month. He has never seen any evidence of dishonesty on her part, nor has he heard any statements or evidence in the community which would tend to show that Ms. Nascimento is anything other than an honest person. Mr. Wiley Pridgen has known Ms. Nascimento for approximately six years, both personally and in a working relationship. The evidence presented by the Division of Alcoholic Beverages and Tobacco was four arrests for violations of various Orange County Topless Ordinances. One of these arrests resulted in a conviction. The facts relating to each of those arrests are as follows: On September 10, 1977, Ms. Nascimento was arrested for permitting or allowing a lewd show in violation of an Orange County Topless Ordinance. On January 20, 1978, the State Attorney for the Ninth Judicial Circuit of Florida, filed a No Information Notice with regard to this particular charge. At the time of this arrest, Ms. Nascimento was bartending in a topless bar where the arrest occurred. She was not arrested for actually dancing in violation of the Ordinance. On September 12, 1977, Ms. Nascimento was again arrested and charged with allowing or permitting a lewd or obscene show in violation of an Orange County Topless Ordinance. On January 20, 1978 (the same date as the first No Information Notice) the State Attorney filed a No Information Notice on the arrest and charge of September 12, 1977. Also at the time of the second arrest, Ms. Nascimento was bartending and not dancing. On August 29, 1979, Ms. Nascimento was arrested again for violating Orange County Ordinance 77-8(2)(3). On advice of counsel, Ms. Nascimento entered a plea of nolo contendere to exposure of genitals and exposure of breasts. After a lengthy appeal, she was convicted and sentenced on September 14, 1982. Ms. Nascimento was required to pay a $100 fine. On January 1, 1980, Ms. Nascimento was arrested again for violating Orange County Ordinance 79-26 (5)(b). At the time of this arrest, Ms. Nascimento was not dancing but was sitting at the end of the bar when she was arrested for owning, operating or managing an establishment at which conduct in violation of Orange County Topless Ordinance was occurring. On May 14, 1980, the charges arising out of that arrest were dismissed. Between 1977 and 1980, there were several amendments to the Orange County Topless Ordinance. There was a great deal of confusion in the business community over what was and what was not a violation of the Orange County Topless Ordinance. These ordinances changed frequently during the time period of the arrests that were made on Ms. Nascimento. Most bar owners had attorneys advising them and their employees as to what was and was not proper or legal under the various ordinance changes. Cheryl Nascimento is a single divorcee and has a 13-year old son. She has custody of her son and receives no child support payments from her former husband and has not received regular child support since 1973. She is the sole source of support for both she and her son and she began working in topless bars because she had no skills or training and was unable to make enough money working in fast-food restaurants to support them. She danced topless for a period of one and a half years and has since that time worked as a bartender. The Respondent presented no evidence of bad character since the date of the last arrest on January 1, 1980.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: 1. That assuming all other qualifications have been met, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, grant the Petitioner's application for an alcoholic beverage license. DONE and ENTERED this 5th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 5th day of April, 1983. COPIES FURNISHED: H. Franklin Robbins, Jr., Esquire 1212 East Ridgewood Street Post Office Box 3322 Orlando, Florida 32802 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronouqh Street Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Michael S. Hiday, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 43066 and auxiliary law enforcement certificate number 43067 on August 30, 1988, and August 7, 1987, respectively. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO). This controversy involves charges that respondent (a) "knowingly fail(ed) to properly submit (a crack pipe to) the Property Room . . . which was taken from a drug suspect" and thus was "in unlawful possession of drug paraphernalia," and (b) was "in actual or constructive possession of crack cocaine . . . (which he) placed . . . into the glove compartment of his assigned police vehicle." The facts underlying these charges are set forth below. Beginning in March 1991, respondent was assigned to the JSO Zone Three Task Force, a small team of officers who responded to various types of citizen complaints filed with the JSO, including those of a drug-related character. As a member of the team, respondent traveled with a partner in an assigned vehicle. In October 1992, respondent's partner was officer Padgett. On October 20, 1992, respondent assisted officer Padgett in the arrest of one Charles D. Littlejohn for possession of a crack pipe, which constituted a misdemeanor offense. During the arrest, respondent learned that Littlejohn had a suspended driver's license. On October 26, 1992, respondent and his partner observed Littlejohn driving a motor vehicle in the 200 block of West Union Street in Jacksonville. After stopping Littlejohn's truck, and confirming that he had a suspended driver's license, respondent asked Littlejohn to step out of the vehicle so he could be placed under arrest. As Littlejohn proceeded to do so, a pipe fell onto the pavement. The pipe appeared to be one typically used by individuals for smoking crack cocaine. There is no evidence, however, that the pipe in question contained any cocaine residue so as to make it illegal contraband. Except for domestic violence, a police officer has the discretion not to arrest an individual for a misdemeanor offense. Respondent knew that Littlejohn could not make bail if he was charged with a drug offense, and that he had just been arrested on a prior drug offense some six days earlier. Since he had already charged Littlejohn with one misdemeanor, namely, driving with a suspended license, respondent decided to "be a good guy" and give Littlejohn "a break." Accordingly, respondent took the pipe from Littlejohn but did not charge him with a drug offense. The pipe was placed in the side door panel of respondent's police vehicle. Later that same day, respondent and his partner were patrolling in the Turkey Villa housing project, a known drug area, when they observed several individuals standing in a group. On the ground near the group was a matchbox which contained a white "ball" resembling crack cocaine. Since the owner of the matchbox could not be determined, respondent took the matchbox and placed it in the seat of his car. When the box began "sliding around" in the seat, respondent placed it in the glove box of his vehicle. There is no evidence, however, that the "ball" in the matchbox was crack cocaine, or any other illegal controlled substance. Respondent intended to turn in the pipe and matchbox to the property room at the end of his shift, as required by a JSO general order. However, respondent acknowledges he became "lax" and did not do so before he left duty that day. By not doing so, respondent failed to conform with the JSO general order. The next day, respondent's vehicle was assigned to another police officer. Before respondent had an opportunity to retrieve the items and turn them into the property room, the JSO internal affairs section searched the vehicle and found the pipe and matchbox. For not complying with JSO general orders pertaining to "Competency and the Handling of Evidence," respondent was given a written reprimand and suspended without pay for thirty working days in July-August 1993. A charge that respondent unlawfully possessed contraband was not sustained. Eventually, the Commission learned of this incident and thereafter issued its administrative complaint, as amended. Respondent did not keep the pipe and matchbox for his own personal use, for the purpose of delivering those items to another person, or for any other illicit reason. Rather, he had always intended to turn them into the property room. Other than the disciplinary action meted out by JSO in 1993, respondent has an unblemished record as a law enforcement officer since being certified in August 1987. He has received a number of commendations, and his current supervisor and other JSO officers had nothing but praise for his work, integrity, honesty and dedication as a police officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the amended administrative complaint, with prejudice. DONE AND ENTERED this 31st day of January, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER 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 31st day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2912 14. Partially accepted in finding of fact 4. 15. Partially accepted in finding of fact 5. 16. Partially accepted in finding of fact 6. 17. Partially accepted in finding of fact 5. 18. Partially accepted in finding of fact 7. 19. Rejected as being unnecessary. 20. Partially accepted in finding of fact 9. 21-25. Rejected as being unnecessary. 26. Partially accepted in finding of fact 9. 27-29. Rejected as being unnecessary. 30. Partially accepted in finding of fact 9. 31-54. Partially accepted in finding of fact 11. 55. Partially accepted in finding of fact 10. 56-58. Rejected as being unnecessary. Petitioner: 1-3. Partially accepted in finding of fact 1. 4-15. Rejected as being unnecessary. 16. Rejected as being recitation of testimony. 17. Partially accepted in finding of fact 5. 18. Rejected as being recitation of testimony. 19. Partially accepted in finding of fact 6. 20. Partially accepted in finding of fact 8. 21. Rejected as being unnecessary. 22-25. Rejected as being recitation of testimony. 26-27. Partially accepted in finding of fact 7. 28-30. Rejected as being recitation of testimony. 31. Rejected as being unnecessary. 32. Partially accepted in finding of fact 8. 33. Rejected as being recitation of testimony. 34. Rejected as being unnecessary. 35-42. Rejected as being recitation of testimony. 43. Rejected as being unnecessary. 44. Partially accepted in finding of fact 9. 45-50. Rejected as being unnecessary or cumulative. 51-57. Rejected as being recitation of testimony. 58-59. Rejected as being unnecessary. 60-63. Rejected as being recitation of testimony. 64-66. Rejected as being unnecessary. 67-75. Rejected as being recitation of testimony. 76. Partially accepted in finding of fact 6. 77. Rejected as being recitation of testimony. 78. Rejected as being cumulative. 79-95. Rejected as being recitation of testimony. Respondent: 1-3. Partially accepted in finding of fact 1. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 3. 6-9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 9. 11. Rejected as being unnecessary. 12. Partially accepted in finding of fact 9. 13. Partially accepted in findings of fact 5 and 7. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street Jacksonville, Florida 32202-2715 James C. Casey, Esquire 10680 N. W. 25th Street Suite 202 Miami, Florida 33172-2108 A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue in this case is whether Respondent's certification as a law enforcement officer should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint.
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: The Respondent was certified by the Criminal Justice Standards and Training Commission on November 10, 1983 and issued certificate number 16-83- 002-04. At all times pertinent to this procceeding, Respondent was a certified law enforcement officer and was employed as a Deputy Sheriff by the Palm Beach County Sheriff's Office. Respondent was not on duty or in uniform at the time of the incident described in the Administrative Complaint. On October 1, 1989, the Respondent and his wife, Janet Phillips, were leaving the TCBY Yogurt Shop in the Royal Palm Beach area. As the Respondent was proceeding to get into the driver's side of their BMW and Janet Phillips was proceeding to get into the passenger side, another car, driven by JoAnn Baker, pulled into the space next to the Respondent's car. Mrs. Baker parked in a position where the driver's door of her car was next to the passenger door of the Respondent's car. As Mrs. Baker was getting out of her car and Mrs. Phillips was getting into her car, the car doors bumped into each other causing the BMW door to knock Mrs. Phillips in the back. After the cars doors bumped, Mrs. Phillips and Mrs. Baker began exchanging words. While Mrs. Baker contends that she was only attempting to apologize, the more credible evidence established that she was a vocal and agitated participant in the argument. Respondent joined in the verbal altercation while all parties were still in the parking lot. At this point, there was no physical contact between Mrs. Baker and Mrs. Phillips nor between Mrs. Baker and the Respondent. Mrs. Baker flipped a "bird" at Respondent and his wife and walked into the yogurt store. The Respondent and his wife got into their car. However, after a few moments, the Respondent's wife got out of the car and went back into the yogurt shop after Mrs. Baker. Respondent followed his wife into the yogurt shop a short time later. Mrs. Phillips walked directly up to Mrs. Baker and got within two (2) or three (3) feet of her. The two women exchanged verbal insults and vulgarities. Mrs. Phillips then stepped toward Mrs. Baker, raised her hand and slapped Mrs. Baker in the face. Mrs. Baker immediately put her hands up in defense to block any other blows. She also made a move towards Mrs. Phillips. Respondent, who by this point had entered the shop, stepped between the two women and pushed Mrs. Baker back against the counter. The Respondent grabbed Mrs. Baker by her arms, lifted her up off the floor and physically placed her down on the counter in a rough manner. The Respondent also placed his forearm and elbow against Mrs. Baker's throat and chest area pinning her against the counter while bending her backwards with her legs dangling off the floor. While pinning Mrs. Baker against the counter, the Respondent was very upset; he put his face within a few inches of Mrs. Baker's face and was screaming at her. Respondent called her a "whore" and a "bitch". After a brief period had passed, the Respondent let go of Mrs. Baker. The Respondent did not apologize to Mrs. Baker nor did he offer any type of assistance to her after the incident. Mrs. Baker went outside to get the Respondent's tag number and told them she was going to call the cops. She also threatened to sue Respondent, which she subsequently did. The Respondent and his wife got in their BMW and left the area. Mrs. Baker received minor bruises and injuries to her back as a result of the incident. Prior to the Respondent grabbing Mrs. Baker, Mrs. Baker had not made any physically aggressive moves towards the Respondent. At the time of the incident, the Respondent was 6'3" in height and weighed 215 pounds; JoAnn Baker was 5'4" in height and weighed between 126 and 135 pounds. The evidence was inconclusive as to the size of Mrs. Phillips, but she was roughly the same size as Mrs. Baker. The Respondent was subsequently charged with a misdemeanor battery based on a complaint filed by Mrs. Baker. He entered a nolo contedere plea to the charge on the advice of his attorney. Adjudication was withheld and Respondent was sentenced to a brief probationary period which he successfully completed . As a result of this incident, Respondent has lost his job with the Palm Beach County Sheriff's office. Respondent's wife had abdominal surgery approximately two weeks before this incident. Respondent claims that he was very concerned about her physical condition and was simply trying to protect her when he thought that Mrs. Baker was going to "attack" his wife. While Respondent's concern is understandable, it is clear that he overreacted and used undue force in restraining Mrs. Baker.
Recommendation Based upon 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 the Respondent guilty of the allegations contained in the Administrative Complaint and suspending his certification as a law enforcement officer for three months followed by a probationary period of one year. DONE and ENTERED this 25th day of March, 1992, at Tallahassee, Florida. 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 25th day of March, 1992. 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. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. Subordinate to Findings of Fact 9. Subordinate to Findings of Fact 9. Rejected as unnecessary. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 11. Rejected as unnecessary and not supported by the weight of the evidence. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 13. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 15. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 18. Subordinate to Findings of Fact 19. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 20. Adopted in pertinent part in Findings of Fact 21. Subordinate to Findings of Fact 22. The Respondents's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 2-3. Rejected as vague and unnecessary. Adopted in substance in Findings of Fact 4-6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9-10. Subordinate to Findings of Fact 11-12. Subordinate to Findings of Fact 11-12. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 12-13. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 11-12. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 11-12. The first sentence is adopted in substance in Findings of Fact 23. The second sentence is rejected as not supported by the weight of the evidence. Subordinate to Findings of Fact 12-15 and 17. Subordinate to Findings of Fact 12-15. Rejected as unnecessary. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 22. COPIES FURNISHED: Dawn Pompey, Esquire Assistant General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Mark D. Ewart, Esquire 319 Clematis Street, Suite 817 West Palm Beach, Florida 33401 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, Florida 32302
