Findings Of Fact Respondent, Roxie E. Vause, was certified by Criminal Justice Standards and Training Commission on September, 1979 and was issued Certificate No. 99- 2566. On August 30, 1986, Roxie E. Vause was Chief Investigator with the Wakulla County Sheriff's Department (WCSD). At Approximately 11:00 a.m., on August 30, 1986, Eric Hindle, Chief of Paramedics and Ambulance Services in Wakulla County, was contacted by his dispatcher who reported Roxie Vause had called stating he had been in an automobile accident and requested Hindle's assistance. Hindle, who was a neighbor of Vause, had known Vause for many years and had had many years experience as an Emergency Medical Technician (EMT). As an EMT, he had dealt with many individuals who were injured and who were suffering from psychotic episodes. Hindle drove to the Vause home with two of his employees where he spoke with Vause's wife and learned that Vause was not at his house. While Hindle was talking with Vause's wife, Patrick Kennedy, a uniformed Wakulla County Deputy Sheriff, also arrived. Kennedy and Vause's wife left in Kennedy's patrol car to visit a house where Vause's wife thought he might be. Hindle decided to drive in the direction of Hindle's house searching for Vause. At approximately 12:00 noon, Hindle viewed Vause walking along the side of the unpaved road in the vicinity of Hindle's home. Vause had his hands and arms held across his stomach as though he were in pain. Hindle radioed that he had found Vause and their location. Hindle then drove his car along side Vause, stopped, and abruptly approached Vause, who reacted as though he were frightened and drew his pistol, pointing it at Hindle. Although they were neighbors and had worked together professionally for years, it was Hindle's opinion that Vause did not recognize him at that time and was having a psychotic episode. Hindle was of the opinion that Vause had been drinking alcohol and did not know where he was or what he was doing. Hindle quieted Vause down and Vause responded to Hindle, putting his pistol away. Hindle was talking with Vause, continuing to pacify him and attempting to place him in Hindle's care for transportation to the hospital when Kennedy arrived in his patrol car with Vause's wife. Kennedy approached Vause from the rear and placed his hand on Vause's shoulder. Kennedy was dressed in uniform and had worked with Vause before. When he was touched, Vause turned towards Kennedy and when he saw his uniform, he began to shout incoherently and redrew his pistol. Kennedy grabbed Vause's hands, holding the gun down between them, and Hindle, Kennedy, and another EMT wrestled Vause to the ground where Kennedy handcuffed him. Hindle was of the opinion that Vause did not know who Kennedy was or what was happening. After he was handcuffed, Kennedy talked with Vause; and as he talked with Vause, it seemed that Vause recognized Kennedy and calmed down again. When he was calm, Kennedy took the handcuffs off and continued to discuss what was going on with Vause. When Kennedy discussed sending Vause to the hospital, Vause went wild again, striking Kennedy in the face with his fist. Kennedy again subdued Vause and rehandcuffed him. Kennedy observed that Vause appeared to go wild; and when in that state, Vause did not appear to recognize Kennedy or others whom Vause should have known. According to Kennedy, Vause did not act normal. Kennedy placed Vause in a vehicle and Vause was transported to the emergency room at Tallahassee Memorial Regional Medical Center. Margorie Landers Smith was a Registered Nurse in the emergency room when Vause was brought in on the afternoon of August 30, 1986. She had known Vause when she had worked for the ambulance service in Wakulla County. She took his medical history and charted his vital signs upon admission. Vause appeared to Smith to have been drinking and was in a highly excited state. Dr. Cohen (phonetic), Vause's doctor, arrived and examined Vause and ordered various tests. Upon receiving the results, Dr. Cohen advised Vause to voluntarily admit himself for psychiatric observation. Vause angrily refused and Dr. Cohen told Vause that he, Cohen, would admit Vause involuntarily. Cohen and Smith were both in an examining room in the hospital's emergency room during this confrontation, and Vause refused to let either of them leave the room. Smith talked with Vause and convinced Vause to let Dr. Cohen leave. Vause admitted to Smith that he was drinking too much and had family problems. Vause eventually allowed Smith to leave the examining room. Dr. Cohen called hospital security and a psychiatrist obtained an involuntary admission order for Vause. Eventually, the Tallahassee Police Department was called to remove Vause to the psychiatric center because the hospital security lacked jurisdiction. Vause had rummaged through the medical supplies in the room and found two very large cardiac syringes with barrels approximately four inches long and heavy gauge needles three to four inches long. When Smith returned to the examining room, Vause threatened her with these syringes, holding them up in her face. Smith continued to try and calm Vause, but he was very upset. Vause kept saying he was going to leave and was not going to the psychiatric center. In response to the hospital's call, two female officers from the Tallahassee Police Department (TPD) arrived on the scene and attempted to talk Vause into letting Smith go and going to the psychiatric center. They succeeded in getting Smith free, but he used the syringes to threaten the officers and Smith, who remained and continued to try and work with Vause. The officers requested backup and Officer Peavey, a K-9 officer, arrived at the scene. After attempting to reason with Vause unsuccessfully, Peavy broke the syringes with a night stick and, together with the TPD officers, hospital security officers, orderlies and nurses, subdued Vause, who was handcuffed and transported to the psychiatric center. On the evening of August 30, 1989, Officer Peavy was called back to the hospital psychiatric center where he arrived to find that Vause had broken free of his four-point restraints. He, again, quieted Vause down and the nurses gave Vause additional medication to calm him down. Peavy observed that Vause's behavior was erratic and Vause would shift rapidly from rational and non- aggressive behavior to irrational and aggressive behavior. On September 12, 1986, officers of the WCSD were called to the residence of Ronnie Kilgore by Kilgore's wife. Vause was one of the officers who responded to the call. Donald Crum, formerly a deputy with WCSD and then with the Florida Department of Law Enforcement, also responded to this call and saw Vause, whom Crum had formerly known well. Crum was shocked at Vause's appearance and struck up a conversation with him about Vause's problems. Vause had been drinking and acted suicidal. Crum was joined by David Harvey, Sheriff of Wakulla County, and together they left Kilgore's house and returned to the Sheriff's office where they continued to discuss Vause's problems and tried to talk Vause into surrendering his weapons. Vause was very agitated, stated he was afraid of people who were out to get him, and refused to surrender his weapons. Several times during his conversation with Crum and Harvey, Vause pulled his weapon and waived it around before reholstering it. Both Crum and Harvey felt that Vause needed to be disarmed for his own good, but that to do so in the Sheriff's office at that time would be courting disaster. They let Vause leave and put a plan into effect to disarm and subdue Vause away from town in order that uninvolved persons would not get hurt. The Leon County Sheriff's Department (LCSD) Special Weapons and Tactics Team (SWAT) was alerted and deployed around the areas in which it was felt Vause could be arrested that evening because Harvey had concluded it was necessary to arrest Vause for Vause's own safety. On the evening of September 12, 1986, a call was received from Ronnie Kilgore, who reported that Vause was at Kilgore's house; however, when the deputies arrived at Kilgore's house, Vause had left. Vause's vehicle was found wrecked in a water filled drainage ditch, and Vause was arrested at a nearby convenience store and returned to the scene of the automobile wreck. When Vause was disarmed, the officers could not account for all of the weapons which he was known to carry and they felt these weapons were in Vause's truck. When they asked Vause about this, Vause advised them that if they entered his truck, they were liable to get hurt because there was a "bomb" in the truck. Joseph Doyle, the bomb expert for the LCSD SWAT and a friend of Vause, was called to the scene. He did not know that it was Vause's vehicle, but he was told that there was possibly an explosive device in the truck and weapons which the WCSD wished to secure. Doyle entered the truck, which was two-thirds full of water, and found several firearms and a one pound can of black powder with a M-120 hand grenade fuse screwed into the top of it. The pin was in place in the fuse and the device was wet. Doyle had worked with Vause on many occasions and had instructed Vause on explosive devices. In Doyle's opinion, the device which he removed from Vause's truck was not as dangerous a device as Vause was capable of making, even with essentially the same materials. Doyle felt the device he had found was probably designed as a signalling device to alert one of the approach of others. Subsequently, Vause was charged with several felonies; however, he plead guilty only to several misdemeanors, receiving two years probation. One of the conditions of this probation was that Vause not drink alcoholic beverages. Vause admits violating this condition of his probation on November 29, 1988 but asserts that he has not violated the condition since that time. For violation of that condition, Vause was sentenced to eight months in the county jail which he has finished serving. Vause admits that he is an alcoholic. He attends meetings of Alcoholics Anonymous and has completed a drug rehabilitation program. Vause has no independent recollection of the events of August 30 and September 12, 1986. Vause feels that his service as a patrol officer contributed to his personal problems and does not desire to return to those duties. He felt that his experience could be put to use as a corrections officer or bailiff. All of the sworn officers who knew Vause praised his service and professionalism prior to the events of August and September 1986. Many of them indicated a willingness to serve with Vause if he had received treatment, was well, and had demonstrated his rehabilitation. Vause experienced a psychotic episode during the period August 30, 1986 and September 12, 1986, during which he was irrational, suffered from violent mood shifts, and exhibited aggressive and suicidal behavior. He was hospitalized during a portion of this period for assessment of his mental competence. No evidence was presented by either party concerning the findings of Vause's admission to determine Vause's competency. However, based upon the testimony of those who observed the Respondent during this period, the Respondent Roxie E. Vause is found to have been psychotic during the period from August 30 to September 12, 1986 to such an extent that he could not form the requisite intent to commit a criminal act.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission reactivate the Respondent's certification upon the following conditions: The Respondent complete all required training and education; The Respondent be placed upon a two-year probation, during which time he shall comply with the following conditions: The Respondent advise any employer or potential employer that he is a recovering alcoholic; The Respondent regularly attend meetings of Alcoholics Anonymous for 24 months and present evidence of attendance to his supervisors upon request; The Respondent, if medically possible, take medications for 24 months which cause violent intestinal upset if alcohol is ingested; The Respondent attend any additional counseling, treatment, or instruction which the Commission or his employer may require for 24 months to include his appearance as a speaker or participant; and The Respondent submit all performance evaluations by his employer on his performance to the Commission during his probation. The Respondent's certificate may be revoked or this probation may be extended by the Commission for violation of the terms of this probation. DONE AND ORDERED this 18th day of December, 1989, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. COPIES FURNISHED: Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Harold S. Richmond, Esq. P.O. Box 695 Quincy, FL 32351 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Box 1489 Tallahassee, FL 32302 =================================================================
The Issue The issue in this proceeding is whether Bartram R. Connelly's certification for law enforcement employment should be revoked, as provided in Section 943.1395, Florida Statutes, for lack of "good moral character" as alleged in the Administrative Complaint dated March 12, 1987.
Findings Of Fact Bartram R. Connelly was certified by the Criminal Justice Standards and Training Commission on December 14, 1981, and was issued certificate numbers 502-00373 and 68-83-002-05. During the relevant period he was employed as a police officer with the City of Orlando Police Department. On the evening of November 30, 1985, Orlando police officer George Davis and his partner observed a Black male sitting in a black Pontiac Fiero on Buck Alley in Orlando. The officers ran a check on the tag of the vehicle and it came back as stolen. As they got out of their patrol car and approached the driver, the black Fiero took off. What ensued was a high speed, harrowing chase, in holiday traffic, through downtown Orlando. It lasted for approximately ten miles and in the words of one participant, "It was very Hollywood." At least three patrol cars, including Connelly's, were involved in the chase, sometimes exceeding 50 miles an hour. The suspect made U-turns, ran stop signs and red lights, and at one point sped through a 7-Eleven parking lot at 50 miles an hour throwing sparks and was briefly airborne. At another point the suspect collided with the patrol car driven by Connelly at approximately 40-45 miles an hour. The suspect's vehicle was impacted in the front driver's side and Connelly's vehicle was hit in the front right side. The vehicles locked together and the suspect spun his tires, accelerating in reverse. When the car broke free, the chase resumed. After hitting the uneven pavement of another parking lot and nearly rolling over, the black Fiero came to a shaky rest at the rear of a motel. Officer Myhre was the first to arrive. The suspect's actions were highly unusual - he nonchalantly got out of his car. "Like a director would yell 'cut'...," he approached the officer saying, "It's okay, I'm working for Mike Jordon, just call him, I'm working for you-all." Myhre had his revolver out and ordered the suspect to the ground. Myhre was scared because of the bizarre reaction of the suspect. Usually in such instances, there is flight, a fight, or submission. This was different. Myhre repeated his order and seized the suspect by the hair and forced him into a push-up position, supine but not on the ground. The suspect was neither violent nor assaultive, but was very strong and resistive. Officer Randolph arrived to assist. With Myhre on the suspect's right and Randolph on his left, Randolph got the left arm in an arm bar and handcuffed it. Myhre still could not restrain the suspect's right side sufficiently to get the other handcuff in place. Connelly arrived and took control of the suspect's head. His upper body was off the pavement and he used his right arm to roll himself up to look over his shoulder. Connelly grabbed his head and pushed it down to the pavement in (according to Myhre) a "firm maneuver." Several times the suspect lifted up and was pushed back down by Connelly. As Myhre completed the handcuffing he observed Connelly forcing the suspect's head one last time, more forcefully than before. Officer Randolph told Connelly to back off. The suspect was then flexcuffed, that is, his feet were cuffed together and to his hands behind his back in a "hog-tied" position. In Myhre's opinion, the suspect was a very dangerous individual. Even though he did not seem to have a gun, his reckless flight indicated some felony more serious than a stolen tag. He was consistently resistive, with strong, tensed muscles. The suspect was taken to a hospital, treated for bruises, scrapes and swelling on his face, and then taken to jail. The vivid color photographs of the suspect, taken by the police department at the hospital, reveal large skin abrasions on the right cheek and left forehead, bruising below the right eye and on the bridge of the nose, and the left eye swollen shut and very bruised. An internal investigation by the Orlando Police Department concluded that Connelly used excessive force on the suspect. Connelly resigned pending discipline. The serious injuries to the suspect were consistent with one or more possibilities suggested by the evidence in this case. He could have been injured when his vehicle collided with Connelly's. Connelly was wearing a seat belt and was not injured. While she did not see the suspect close up immediately after the impact, the officer writing up the accident report indicated possible injuries. Some injuries could also have been caused by the suspect's own thrashing around on the pavement, "road-rash," one witness called it. Or he could have been injured by the arresting officers, including of course, Connelly. The witnesses for the Commission, including the officers involved in the pursuit and apprehension of this suspect, unanimously agreed that he was not subdued until fully handcuffed. The testimony was inconclusive as to whether Connelly shoved the suspect's head down after that point. Officer Randolph said that he did not, and Officer Myhre described a "split second" action just as he was clamping down on the handcuffs. The Orlando Police Department considers slamming or hitting a persons' head justifiable only in situations calling for the use of deadly force. Alternative control techniques are recommended for example, dropping on the person's back to knock the wind out of him or forcing their neck back by grabbing both nostrils and utilizing the sensitive cartilage under the nose. Connelly's intent in handling the suspect was to subdue him, rather than inflict injury. Connelly and his fellow officers involved were unnerved and agitated by the chase and by the suspect's bizarre resistance and insistence that everything was okay. The Commission presented no competent evidence of a pattern of misconduct by Connelly or prior incidents of use of excessive force.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a Final Order dismiss the Administrative Complaint against Bartram R. Connelly. DONE and RECOMMENDED this 10th day of August, 1987, in Tallahassee, Florida. MARY CLARK, 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 10th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1946 The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner 1. Adopted in Paragraph 1. 2-3. Adopted in Paragraph 2. 4-12. Adopted in substance in Paragraph 3. 13-25. Adopted in substance in Paragraph 4. Rejected as unsupported by the weight of the evidence. Adopted in Paragraph 4. Adopted, as to the injuries to the suspect, in Paragraph 5. However, the evidence did not establish conclusively that Respondent's actions were the cause, or sole cause, of those injuries. (See Paragraph 7) Adopted in Paragraph 9. Adopted in Paragraph 6. Respondent 1. Adopted in Paragraph 1. 2-3. Adopted in substance in Paragraph 3. 4-7. Adopted in substance in Paragraph 4. 8. Adopted in substance in Paragraph 5. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bartram R. Connelly 1020 Reflections Circle, #106 Casselberry, Florida 32707 Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified as fire fighters and fire safety inspectors. Respondent is certified in the state as a fire fighter and fire safety inspector. She is currently employed by Volusia County Fire Services as an Emergency Medical Technician. On or about October 16, 1980, Respondent was charged in circuit court with vehicular manslaughter and driving under the influence of alcohol. Vehicular manslaughter is a felony under Sections 860.01(1)and (2), Florida Statutes. 1/ Driving under the influence of alcohol is a misdemeanor under Section 316.193. On or about April 15, 1981, Respondent entered a plea of nolo contendere to the charge of "Manslaughter by Operation of a Motor Vehicle while Intoxicated or Deprived of Full Possession of Normal Faculties." The court withheld adjudication, placed Respondent on probation for two years, and restricted her driver's license to business purposes for the first three months of her probation. Respondent successfully completed her probation on April 15, 1983. On or about September 15, 1992, Respondent completed an application for certification as a fire fighter. The application asked, "Do you have a record of conviction of a felony or a misdemeanor?" Respondent answered, "No." Respondent did not answer the foregoing questions untruthfully. Respondent was advised by counsel that there had never been an adjudication of guilt and that she should state that she had never been convicted of the charges in 1981. On or about September 10, 1993, Respondent completed an application for certification as a fire safety inspector. The application asked, "Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?" Respondent answered, "No." Respondent believed that she had never been convicted of such an offense because adjudication of guilt had been withheld, and she had successfully completed her probation. Petitioner certified Respondent as a fire fighter and as a fire safety inspector. Petitioner relied, in part, upon Respondent's answers to the questions quoted in the preceding paragraphs. Respondent did not intentionally misrepresent her criminal history to Petitioner on either application. Respondent relied on advice of counsel and a good faith belief in the truthfulness and correctness of her responses. Respondent is actively employed as a fire fighter. She is seeking certification as a fire safety inspector to further her career and to obtain employment closer to her residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of all of the charges in the Administrative Complaint except the charge of pleading nolo contendere to a felony within the meaning of Section 633.081(6)(d). It is further recommended that Petitioner enter a Final Order authorizing the issuance of a written reprimand. RECOMMENDED this 9th day of January, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 9th day of January, 1995.
The Issue The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the "Department").
Findings Of Fact On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial. On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge." Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . . Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 in Marion County, Florida, and relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998. At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day. It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes. Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations. Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement. Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit. However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction. In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision." The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction. In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime. Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case No. 02-3167PL. The complaint was filed with the Board of Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered. In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner. On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542. Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment. By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT. The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction. At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7, 2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information. At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department. By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it. For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address. Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent. Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime. Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period." At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following: Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . . Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000. On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
Findings Of Fact Fuller Warren Crews was employed until 1959 as a police officer in Jacksonville, Florida. In 1959, he was permitted to resign rather than face disciplinary charges. In 1959, Crews pled guilty in Jacksonville to damage to telephone equipment, a misdemeanor. Crews was sentenced to six months in the county jail. In 1960, Crews was found guilty of possession of tools used in committing crimes and pled guilty to simple larceny in Tifton County, Georgia. Be was sentenced to three to five years in prison in Georgia. Crews was fully pardoned for the offense of possession of tools used in committing crimes on October 6, 1975. Approximately eight to ten years ago, Crews became active within tie Nassau County Sheriff's posse helping to reorganize those police auxiliary groups. He was very dedicated and did a fine job, eventually becoming Captain of the posse. Crews applied for a position as Deputy Sheriff in Nassau County in 1976. He was interviewed by the Sheriff, who he advised of his criminal record. The Sheriff desired to hire Crews and contacted the Police Standards and Training Commission. In January, 1976, the Sheriff's Department provided the PSTC with various data on Crews. This data constituted the application for certification by the Commission, which does not have an application form. This application led to the processing of Crews' certification over the next two years. The procedures of the Department delegated to individual law enforcement agencies the task of conducting background investigations. Basic background data on Crews' convictions and former employment was provided the PSTC prior to Crews' certification on February 3, 1978 (Transcript, pages 178 and 179). In the course of processing his application, Crews appeared informally before the Commission concerning his certification on August 20, 1976. At that time questions were asked of Crews by the Commission regarding his dismissal from the Jacksonville Police Department. Crews responded that he had been discharged because of charges involving unlawful damage to private property (Transcript, pages 129, 165 and 166). There was no indication that Crews failed in any way to disclose his past record either in his application or in his statements to the Commission. Crews was denied certification because of the Commission's interpretation of Chapter 112.011, Florida Statutes, to Crews' pardon and the Federal Firearms Control Act, 18 U.S.C. 922(h) (Exhibit #2). Crews' fingerprints were taken by the Sheriff's Department and forwarded to the Florida Department of Law Enforcement (FDLE) but not to the PSTC. The FDLE forwarded Crews' fingerprints to the Federal Bureau of Investigation (FBI). The FBI sent one fingerprint card and Crews' RAP sheet back to the FDLE but not to the PSTC, and the FDLE sent the fingerprint card and RAP sheet to the Sheriff's Department. Under the PSTC's standard procedures, the Sheriff's Department sent this data to the Commission when Crews was hired, the day after his certification. The Sheriff's Department had knowledge of Crews criminal convictions and dismissal from the Jacksonville Police Department from the RAP sheet and Crews' statements to the Sheriff. On February 3, 1978, the Commission certified Crews. There was a discussion of Crews' background by the Commission, particularly his pardon, after which Crews was certified. His certification resulted from the Commission's interpretation of the law (Transcript, pages 166, 167, 182, 184, 105 and 186. See also attached minutes, Exhibit #4 and letter from Smith to Long). According to a member of the Commission at that time, Crews' certification was not a clerical error but resulted from the Commission staff's failure to follow up on data which it possessed (Transcript, pages 189 and 190) Many co-workers, the Sheriff by whom Crews is employed, neighbors and others testified regarding Crews' reputation in the community and their personal assessments of Crews' character. He is considered to be truthful, trustworthy, honest and hardworking. He has worked as a deputy sheriff since 1978 and has a reputation as a fine professional law enforcement officer respected by his co- workers and associates, many of whom testified in his behalf.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Police Standards and Training Commission toe no action to revoke the certification of Fuller Warren Crews because it lacks authority to consider any grounds for revocation which preexisted its initial final action of certification, and because the record reflects that Fuller Warren Crews has maintained good moral character. DONE and ORDERED this 18th day of November, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Administrative Law Section The Capitol Tallahassee, Florida 32301 James Corrigan, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 ================================================================= 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.: 80-921 FULLER WARREN CREWS, Respondent. /
The Issue Whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner in violation of the Florida Civil Rights Act of 1992 (Sections 760.01 through 760.11, Florida Statutes.)1
Findings Of Fact Respondent is a political subdivision of the State of Florida with over 50 departments and 30,000 employees. GSA is the Respondent’s department responsible for providing security to other county departments and facilities. GSA provides security services by contracting with private vendors. At the times relevant to this proceeding, GSA had contracts with approximately seven separate vendors to provide security guards where needed. One of the vendors is Security Alliance, which is a private company that provides security guards to both public and private entities. In 2004, GSA, on behalf of Respondent, entered into a contract with Security Alliance. The “General Terms and Conditions” of the bid document, which were incorporated into the contract between Respondent and Security Alliance, pertained to the responsibility of the vendor as an employer and provided as follows in Section 1.16: The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . . Security Alliance hired the security guards that were assigned to County posts. Only Security Alliance had the authority to terminate one of its employees. Respondent had no authority to terminate the employment of any Security Alliance employee. Security Alliance paid the salaries and the employment taxes of the security guards it employed to work on County posts. Security Alliance administered their annual and sick leave. Security Alliance supervisors monitored the daily activities of the Security Alliance security guards assigned to the various County facilities. Security Alliance employed approximately 250 security guards to service the contract it had with Respondent. As noted above, the contract between Respondent and Security Alliance gave Respondent the authority to require Security Alliance to remove a security guard from a County post if Respondent deemed the security guard’s performance to be unacceptable. Respondent could require that a particular security guard not be assigned to specific County posts. Respondent could also require that a particular security guard not be assigned to any County post. Security Alliance could assign the security guard to other duties with Respondent (depending on the Respondent’s instructions to Security Alliance) or with other clients. Petitioner is a black male whose national origin is Haitian. In 2003, Security Alliance hired Petitioner as a security guard and assigned him to work at facilities operated by Respondent’s Water and Sewer Authority (WASA). Petitioner was one of between 30-to-50 security guards assigned by Security Alliance to WASA facilities. The Preston Water Treatment Plant (Preston Plant) is a water purification and distribution facility operated by WASA. The Preston Plant runs around the clock and is considered by Respondent to be critical infrastructure. Security must be maintained at the Preston Plant at all times because of the need for a safe water supply and because dangerous chemicals are maintained there. On October 16, 2006, Michael Breaux, a white male, was employed by WASA as a Security Supervisor. His duties included monitoring the performance of guards assigned to security posts at WASA facilities. On October 16, 2006, Mr. Breaux conducted a routine check of the security posts at the Preston Plant. Mr. Breaux observed the security guard at the front gate slumped over his chair with his back to the gate. That security guard was subsequently identified as Petitioner. Mr. Breaux observed that Petitioner was inattentive. Mr. Breaux testified, credibly, that Petitioner’s lack of attention to duty posed a security risk. Nick Chernichco, Mr. Breaux’s supervisor, told Mr. Breaux to report his observations to Mr. Wolfe, who was the GSA security manager. Mr. Breaux reported his observations to Mr. Wolfe orally and in writing. Mr. Wolfe is a white male. When he reported his observations to Mr. Wolfe, Mr. Breaux did not know Petitioner’s national origin. Petitioner failed to establish that Mr. Breaux's actions following his observations of Petitioner at the guard station were motivated by Petitioner’s race or national origin.5 Mr. Wolfe did not meet with or talk to Petitioner in October 2006. After speaking to Mr. Breaux and reviewing the written report Mr. Breaux generated, Mr. Wolfe instructed the Security Alliance manager (Al Martin) not to assign Petitioner to a WASA facility. Mr. Wolfe took that action based on Mr. Breaux’s opinion that Petitioner’s lack of attention created a security risk. Petitioner failed to establish that Mr. Wolfe’s action was motivated by Petitioner’s race or national origin.6 After Mr. Wolf’s instruction to Mr. Martin, Security Alliance could have assigned Petitioner to any County facility other than a WASA facility or to another Security Alliance client. On May 17, 2007, Mr. Wolfe conducted rounds to check on security personnel at various County facilities. He came upon a security guard at the pump station located at 911 Northwest 67th Avenue, Miami, which is a WASA facility. The greater weight of the credible evidence established that Mr. Wolfe did not remember Petitioner, who was the security guard he met. Mr. Wolfe observed that Petitioner was in violation of the uniform policy and had unauthorized reading material at his post. Mr. Wolfe returned to his office and proceeded to reduce to writing what he had observed. While preparing his memorandum Mr. Wolfe realized that Respondent had instructed Security Alliance not to use Petitioner at any WASA facility. Because of that prior order, with which Security Alliance had failed to comply, Mr. Wolfe informed Security Alliance of his observations, instructed Security Alliance not to use Petitioner as a security guard for any County post, and imposed a fine against Security Alliance in the amount of $1,800.00. Mr. Wolfe had no interest whether Petitioner retained his employment with Security Alliance and he did not intend to interfere with that employment, as long as Security Alliance did not assign Petitioner to a County post. Petitioner failed to establish that Mr. Wolfe’s actions following his observations on May 17, 2007, were motivated by Petitioner’s race or national origin. On or shortly after May 17, 2007, Security Alliance terminated Petitioner’s employment for failing to adhere to its policies. Brunelle Dangerville filed a Charge of Discrimination against Respondent. That complaint, together with Mr. Dangerville’s testimony, established that Mr. Dangerville and Petitioner were not similarly situated employees. Consequently, the claims raised by Mr. Dangerville’s Charge of Discrimination are irrelevant to this proceeding. Taken as a whole, the evidence in this case is insufficient to establish that Respondent was Petitioner’s employer or that it, acting through Mr. Wolfe or otherwise, unlawfully discriminated against Petitioner on the basis of his race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondent not liable to Petitioner for the alleged discriminatory employment practice(s). DONE AND ENTERED this 17th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2009.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 18, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers. Section 943.12(3), Florida Statutes (1997). Ms. Gilbert was certified by the Commission as a law enforcement officer on March 12, 1993, and was issued Law Enforcement Certificate No. 136544. On July 1, 1994, Ms. Gilbert was employed as a sworn law enforcement officer by the Metro-Dade Police Department. On July 1, 1994, Officer William Romero was employed by the Metro-Dade Police Department as a law enforcement officer. He was first employed on March 29, 1993, and was still on probation on July 1, 1994. He was working as a uniform patrol officer, and, at the time of the incident in question, he was working alone. On the evening of July 1, 1994, a black female flagged down Officer Romero while he was patrolling the neighborhood. When Officer Romero stopped, she told him that an elderly, Hispanic male was in the vicinity armed with a handgun. Officer Romero promptly confronted the person pointed out by the black female and told him to turn around. When the man did so, Officer Romero saw a revolver sticking out from the waistband of the man's trousers. Although the gun was not in the man's hand at the time, Officer Romero immediately drew his firearm and told the man to put his hands up. The man did not respond but continued to talk with very slurred speech, and he appeared intoxicated to Officer Romero. After a few moments, the man grabbed the revolver in his waistband, but it stuck, and he was not able to remove it. Officer Romero overpowered the man, and they fell to the ground and wrestled. Officer Romero was able to remove the gun from the man's waistband, and he threw it onto a nearby grassy area. Officer Romero handcuffed the man and picked up the gun. He opened the cylinder of the revolver and saw that there were no bullets in the cylinder. Officer Romero took the gun back to his patrol car, and put the suspect in the car as well. Officer Romero then called fire rescue because the man was elderly and intoxicated, and Officer Romero was concerned because they had wrestled for what seemed like several minutes. Officer Romero did not speak with the black female who had flagged him down after she initially told him about the man with the gun, nor did he interview any other persons in the area. Lieutenant Kevin Lindahl arrived on the scene immediately after Officer Romero placed the suspect in the patrol car. Officer Romero explained the situation to Lieutenant Lindahl, showed him the suspect's handgun, and specifically told him that the gun was unloaded during his altercation with the suspect. When he showed the gun to Lieutenant Lindahl, the cylinder was open, and it was obvious that there were no bullets in the gun. Lieutenant Lindahl left the scene a short time after he arrived. As Lieutenant Lindahl was leaving the scene, then- Officer Gilbert and Officer Willie McFadden arrived. These officers were the primary unit assigned to the call. At the time of the July 1, 1994, incident, Officer McFadden was on probation as a new law enforcement officer, and Officer Gilbert had recently completed her probation. They were assigned to the same squad but were not routinely assigned to work together. When they arrived at the scene, both Officer McFadden and Officer Gilbert approached Officer Romero as he sat on the driver's side of his patrol car. Officer Romero told them what happened after he was flagged down; Officer Gilbert and Officer McFadden were both privy to Officer Romero's remarks.2 Officer Romero gave the suspect's revolver either to Officer McFadden or to Officer Gilbert. Officer McFadden asked Officer Romero whether the gun was loaded. Officer Romero responded that the gun was not loaded, and Officer McFadden examined the gun and confirmed that the cylinder was open and that there were no bullets in the cylinder. Both Officer Gilbert and Officer McFadden understood Officer Romero's statement that the gun was not loaded to refer to the time during which Officer Romero and the suspect struggled over possession of the gun, when Officer Romero took the gun from the suspect. Officer Romero turned the suspect over to Officer Gilbert and Officer McFadden and then left the scene. Officer Romero sought out and spoke with his acting sergeant, Officer Sandra Leon. He told her about the incident and advised her that Lieutenant Lindahl had appeared at the scene. During this conversation, Officer Romero told Officer Leon that there were no bullets in the gun. It was important to him because he was a rookie police officer and the July 1 incident was the first time he had confronted an armed suspect; he was nervous because he almost shot the suspect. Officer McFadden spoke with several witnesses at the scene who told him that the suspect's revolver had been loaded at some point during the afternoon and that the bullets had been removed from the gun. He was also told that the suspect had put the gun to someone's head and pulled the trigger twice but that the gun did not discharge. Officer McFadden "asked around for the bullets; no one could give me the bullets. And I immediately said then the gun is unloaded, we can't find any bullets."3 None of the witnesses Officer McFadden interviewed told him that the suspect had discharged the gun before Officer Romero arrived. Officer McFadden did not interview witnesses in the house in front of which the altercation took place. Rather, he stayed with the suspect while Officer Gilbert went into the house and spoke with several witnesses. She was told by Brenda Smith, the woman who had flagged down Officer Romero, that, earlier in the afternoon, the suspect had discharged the firearm into the air outside the house. Ms. Smith also told Officer Gilbert that the suspect entered the house after discharging the gun, pointed the gun at her and another person in the house, and pulled the trigger twice; the gun did not fire but just clicked when the hammer fell. Officer McFadden and Officer Gilbert stayed at the scene about 30 or 40 minutes. They discussed the offenses with which to charge the suspect and began preparing the required paperwork, which consisted of the arrest affidavit, the offense/incident report, and the property receipt. During the discussion at the scene, Officer McFadden raised the possibility of charging the suspect with the offense of "using a firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances" (hereinafter "using a firearm while under the influence"), a crime defined in Section 790.151, Florida Statutes (1993), and identified as a first degree misdemeanor. Officer McFadden looked up the offense in the police manual setting forth crimes and their elements.4 The focus of discussion between Officer Gilbert and Officer McFadden was the statutory requirement that the firearm be loaded; they did not discuss whether the charge was appropriate in light of the fact that the offense was a misdemeanor. Officer McFadden and Officer Gilbert continued discussing the offense of using a firearm while under the influence as they drove the suspect to the Dade County Jail and as they completed the arrest affidavit, which they did while sitting in the patrol car in the jail parking lot. Officer Gilbert told Officer McFadden during this discussion that a witness had told her that the suspect had discharged the gun earlier in the afternoon, before Officer Romero arrived on the scene. Officer Gilbert believed that it was appropriate to charge the suspect with this offense because he was intoxicated and because she had been told that the gun had been discharged during the afternoon. Since she had been told that the gun had been discharged, Officer Gilbert reasoned that the gun had been loaded at some point during the afternoon, a fact which was corroborated by the witness statement given to Officer McFadden. Officer Gilbert and Officer McFadden agreed to charge the suspect with the offense of using a firearm while under the influence.5 Officer Gilbert filled out the arrest affidavit in the jail parking lot, in Officer McFadden's presence. She included the charge of using a firearm while under the influence, and she inserted the phrase "since the gun was loaded" into the narrative portion of the arrest affidavit, squeezing it in at the end of one line of printing as she was editing and completing the affidavit. As revised, the narrative in the completed arrest affidavit contains the following sentence: "V-01 advised that he and V-02 was in fear of their life being taken [when the suspect pointed the gun at them and pulled the trigger] since the weapon was loaded." Officer Gilbert did not mention in the arrest affidavit narrative that the witness Brenda Smith had told her that the suspect had discharged the revolver earlier in the afternoon. Before they left the patrol car, Officer Gilbert and Officer McFadden signed both pages of the affidavit, attesting by their signatures that "I swear that the above Statement is correct and true to the best of my knowledge and belief."6 The offenses set forth in the arrest affidavit when Officer Gilbert and Officer McFadden signed it in the parking lot of the jail were aggravated assault, discharging a firearm in public,7 carrying a concealed firearm, resisting arrest, and using a firearm while under the influence. Probable cause existed to arrest the suspect regardless of whether the offense of using a firearm while under the influence was properly charged. Although Officer McFadden had searched the suspect at the scene, he was searched again by the corrections officers at the jail. This search produced a knife and six bullets, which were found in the suspect's clothing. Officer Gilbert was told that these items were on the suspect's person, and, based on the information that the suspect was carrying a knife, she added to the arrest affidavit the charge of carrying a concealed weapon. Officer McFadden was aware that Officer Gilbert added the concealed weapon charge, which he considered an appropriate charge under the circumstances. The arrest affidavit was turned in at the jail. Officer McFadden completed the first page of the required offense/incident report at the station, after he and Officer Gilbert left the suspect at the jail.8 He included the charge of using a firearm while under the influence, and he cited the charge to Section 790.151, Florida Statutes. Officer McFadden claimed that he was not aware that he had included that offense in the report, that he was simply copying the information from the arrest affidavit completed by Officer Gilbert without thinking about what he was writing.9 At some point, Officer McFadden stopped working on the offense/incident report and began completing the property report. While Officer McFadden was preparing the property report, Officer Gilbert completed the narrative portion of the offense/incident report. Although Brenda Smith was listed in the report as a witness, Officer Gilbert did not mention in the narrative that Ms. Smith had reported that the suspect had discharged the gun during the afternoon, nor did she include in this narrative any statement regarding whether the gun was loaded or unloaded. Officer Gilbert cannot explain these omissions. As acting sergeant and the supervisor of Officer McFadden and Officer Gilbert on July 1, 1994, Officer Sandra Leon was responsible for reviewing the offense/incident report at issue in this proceeding and ensuring that all of the information provided was complete and correct. Officer Leon reviewed the offense/incident report on the evening of July 1, 1994, and she noticed that the offense of using a firearm while intoxicated was included in the report. She was not familiar with this offense, so she looked up the statute defining the offense. She noted that an element of the offense was that the firearm be loaded, and she remembered that Officer Romero had told her that the gun was not loaded when he struggled with the suspect. Nonetheless, without speaking with either Officer McFadden or Officer Gilbert, Officer Leon signed the offense/incident report and forwarded it through channels pursuant to the usual procedures. At the time she signed the report, Officer Leon knew that the narrative did not include all of the elements of the offense of using a firearm while under the influence, and she recalled that Officer Romero had told her that the gun was not loaded at the time he arrested the suspect. The next day, in a brief encounter, Officer Leon "casually" asked Officer Gilbert whether the gun was loaded.10 According to Officer Leon, Officer Gilbert responded affirmatively, and Officer Leon did not pursue the matter any further with Officer Gilbert. Officer Leon and Officer Gilbert did not engage in a conversation regarding the offense/incident report, and Officer Leon asked Officer Gilbert only the one question. Shortly after she spoke with Officer Gilbert, Officer Leon spoke with Officer McFadden about the condition of the gun because he had also signed the offense/incident report. According to Officer Leon, Officer McFadden appeared "visibly upset" during this conversation, and Officer Leon attributed this to the fact that, because he had signed the offense/incident report, he and Officer Gilbert were "equally at fault."11 Officer McFadden told Officer Leon that the gun was not loaded. Finally, Officer Leon spoke again with Officer Romero, who confirmed that the gun was not loaded when he took it from the suspect. Four or five days later, Officer Leon brought the matter to the attention of Lieutenant Lindahl, who had taken several days off from work after the July 1 incident. Officer Leon went to Lieutenant Lindahl because, even though she had signed and submitted the offense/incident report, she was concerned that there was a problem with charging the suspect with the offense of using a firearm while under the influence. Officer Leon told Lieutenant Lindahl that she had asked Officer Gilbert about the condition of the gun and that Officer Gilbert told her that it was loaded. Lieutenant Lindahl then had a copy of the arrest affidavit sent to his office via facsimile.12 Lieutenant Lindahl reviewed the arrest affidavit and questioned Officer Romero and Officer McFadden about the condition of the gun. Officer Romero reiterated his story that the gun was not loaded when he took it from the suspect. Officer McFadden told Lieutenant Lindahl that he had told Officer Gilbert repeatedly that the charge of using a firearm while under the influence was improper because the gun was not loaded, but he did not tell Lieutenant Lindahl that Officer Gilbert had told him that a witness reported that the suspect had discharged the gun before Officer Romero arrived at the scene. Lieutenant Lindahl did not ask Officer Gilbert why the charge of using a firearm while under the influence was included on the arrest affidavit and in the offense/incident report. Rather, he decided it was appropriate to refer the matter to the police department's internal affairs section, and he promptly filed a complaint against Officer Gilbert.13 Lieutenant Lindahl based his decision to file the complaint against Officer Gilbert on the statements of Officer Romero and of Officer McFadden. Lieutenant Lindahl concluded that Officer Gilbert included the charge of using a firearm while under the influence in the arrest affidavit even though she knew that the gun was not loaded and that this was an essential element of the offense. Lieutenant Lindahl testified that, if the gun had in fact been discharged, the charge of using a firearm while under the influence "would have been appropriate."14 Lieutenant Lindahl did not speak with Officer Gilbert after he filed the complaint because she was the subject of an internal affairs investigation, and it would have been improper for him to interfere in the investigation by talking with her. It is not unusual for arresting officers to charge a suspect with an offense when all of the elements of the offense are not present. If a charge included in an arrest affidavit is not appropriate, the responsible police officers bring it to the attention of the assistant state attorney handling the case, who sees that the unsupported charge is stricken from the arrest affidavit. When Officer McFadden and Officer Gilbert met with the assistant state attorney at what is called the "prefile conference" to discuss the arrest on July 1, 1994, they asked the assistant state attorney whether, in his opinion, the charge of using a firearm while under the influence should be stricken from the arrest affidavit because the gun was not loaded. The assistant state attorney reviewed the statute and concluded that the charge should be dropped. On October 20, 1994, Officer Gilbert gave a sworn statement to the internal affairs investigator for the Metro-Dade Police Department. In that statement, Officer Gilbert testified that she overheard Officer Romero state that the gun was unloaded at the time of the altercation; that she and Officer McFadden agreed to charge the suspect with using a firearm while under the influence; that the charge and the phrase "since the gun was loaded" were on the arrest affidavit before Officer McFadden signed the affidavit; and that she never spoke with Officer Leon about the offense/incident report. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert knowingly made a false statement that was intended to mislead when she included in the arrest affidavit the offense of using a firearm while under the influence and inserted in the affidavit the phrase "since the gun was loaded." Rather, based upon the consideration of all of the evidence presented herein and upon the assessment of the credibility of the witnesses, the persuasive evidence supports the finding that Ms. Gilbert acted in good faith when she included the charge and the phrase "since the gun was loaded" in the arrest affidavit. It was Officer Gilbert's understanding from the statement of Brenda Smith that the suspect had discharged his gun prior to the arrival of Officer Romero and that the suspect was intoxicated when he did so, and Officer McFadden agreed with Ms. Gilbert that the offense of using a firearm while under the influence could appropriately be charged.15 In any event, Ms. Gilbert's use of the phrase "since the gun was loaded" in the arrest affidavit was, under the circumstances, ambiguous. Pursuant to her testimony, which is credited, Officer Gilbert assumed that, because the suspect discharged the gun, the gun had, at some point, been loaded; Officer Leon and Lieutenant Lindahl assumed that the phrase referred to the time period in which the suspect was involved in the altercation with Officer Romero. The first opportunity Officer Gilbert was given to explain what she meant by the phrase was in the sworn statement she gave on October 20, 1994. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert gave false statements, which she did not believe to be true, in her sworn statement given on October 20, 1994, to the Metro-Dade Police Department's internal affairs investigator. First, the conflicts in the testimony of Officer McFadden and Ms. Gilbert have been resolved on the basis of the evidence presented herein, and the persuasive evidence supports the finding that Ms. Gilbert did not make a false statement under oath when she stated that Officer McFadden signed the arrest affidavit after she included the offense of using a firearm while under the influence and inserted the phrase "since the gun was loaded." Second, contrary to the position taken by the Commission, Ms. Gilbert did state in the October 20, 1994, sworn statement that she had overheard Officer Romero state that the gun was not loaded when the suspect was arrested. Third, although Ms. Gilbert's testimony in her sworn statement that she had never discussed the report with Officer Leon conflicts with Officer Leon's testimony that she asked Officer Gilbert if the gun was loaded, it is reasonable to infer that, due to the brief, casual nature of Officer Leon's inquiry to Ms. Gilbert and the length of time which elapsed between the incident and her sworn statement, Ms. Gilbert simply forgot that Officer Leon had asked her that one question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission dismiss the Administrative Complaint against Hawanda Gilbert dated June 28, 1996. DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 June, 1999.
