The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 May, 2011.
Findings Of Fact Respondent is and at all material times has been certified as a auxiliary law enforcement officer by Petitioner in the State of Florida, holding license number 01-7570. During 1986, Respondent was working part-time as an unpaid auxiliary trooper for the Florida Highway Patrol. Shortly before 11:00 p.m. on the evening of May 31, 1986, Respondent was riding in a marked Florida Highway Patrol car with Trooper Clark Dickenson of the Florida Highway Patrol. At the same time, Sergeant Donald Smith, who was driving another Florida Highway Patrol car, was monitoring two vehicles proceeding south on U.S. Highway 441 toward Kissimmee. Due to the excessive speed of the vehicles, Sergeant Smith decided to stop the vehicles, but needed assistance to stop both of them. He therefore radioed Trooper Dickenson, described the lead car, and directed him to stop and detain the driver while Sergeant Smith stopped and ticketed the driver of the other car. Pursuant to Sergeant Smith's instructions, Trooper Dickenson stopped the lead vehicle, which was a three-month old 1986 Chevrolet Camaro being driven by Cynthia Cramer. Trooper Dickenson approached Ms. Cramer's automobile and informed her that she would have to await the arrival of another highway patrolman in order to receive a citation. Pursuant to Trooper Dickenson's request, Ms. Cramer gave him her driver's license. Within five or ten minutes, Sergeant Smith arrived at the scene. Trooper Dickenson handed the driver's license to Sergeant Smith and shortly thereafter left the scene with Respondent, who had not left Trooper Dickenson's car during this time. Sergeant Smith issued a citation to Ms. Cramer for speeding. Ms. Cramer received no other citations, notices, or warnings of any nature from Sergeant Smith, Trooper Dickenson, or Respondent, either at the scene or at anytime thereafter. During this time period, unknown to Respondent and the Florida Highway Patrol, Trooper Dickenson had been falsifying faulty equipment notices in order to mislead his superiors into believing that his level of activity as a highway patrolman was higher than in fact it was. From April to July, 1986, he filed over 100 notices to drivers for whom Trooper Dickenson supplied fictitious driver's licenses. However, the notices, which were ordinarily issued to the driver at the scene, were never in fact issued. The notices were mere warnings rather than citations and did not result in points being assessed against the driver's license. At the time, the follow- up on a faulty equipment notices was nearly nonexistent, so that the falsifications were difficult to detect and resulted in no adverse consequences to the drivers, who naturally "ignored" the notices that were never issued. Shortly after the above-described incident involving Ms. Cramer, Trooper Dickenson ordered Respondent to complete the upper portion of a Notice of Illegal or Faulty Equipment for the Cramer vehicle and show that it had one headlight out. Respondent completed a Notice of Illegal or Faulty Equipment for the Cramer vehicle. The notice was inaccurate as to month, day, and year of birth for Ms. Cramer. The notice was inaccurate as to two of the three digits and two of the three letters of the license tag. The notice was inaccurate by one year as to the year of the car. Most significantly, the notice was inaccurate as to the condition of the headlights: both were operating that evening. However, unlike all of the other cases involving falsified faulty equipment notices issued by Trooper Dickenson, the driver's license number for Ms. Cramer was correct. After Respondent had filled out the upper portion of the above- described notice, Trooper Dickenson signed the form and filed a copy with the Florida Highway Patrol with the intent to mislead his superiors to his advantage. He never issued the driver's copy to Ms. Cramer. There is no proof that Respondent knew that the notice was inaccurate as to the condition of the headlights. There is no proof that Respondent himself saw the headlights operating or that Trooper Dickenson confessed to Respondent that the notice was fraudulent as to the condition of the headlights. There is no proof that Respondent was aware of any impropriety in the failure of Trooper Dickenson to complete and issue the notice while on the scene or any intent on the part of Trooper Dickenson not to issue the notice in due course after its preparation by Respondent. However, Respondent knew that he was completing the form with inaccurate information. The inaccuracies, apart from the condition of the headlights, were not due to errors on Respondent's part. Respondent knew that he lacked the requested information and intentionally supplied information that he knew to be incorrect.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of February, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of February, 1989 1-10. Adopted. 11. Rejected as irrelevant. 12. Rejected as subordinate. 13-20. Adopted. 21. Adopted in substance. 22-23. Adopted. 24-25. Rejected as subordinate. 26. Adopted as to Trooper Dickenson. Rejected as to Respondent as APPENDIX unsupported by the greater weight of the evidence. COPIES FURNISHED: Terry D. Shutts 1210 Marygon Street Kissimmee, FL 32743 Joseph S. White Assistant General Counsel Florida Department of Law Enforcement PO Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Florida Department of Law Enforcement -Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esq. General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact At all times relevant thereto, respondent Santiago Baez, held commercial driving instructor certificate card number 6498 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (Division). Baez who is fifty-eight years old, has been an instructor for at least eight years and was last employed at the Fajardo Driving School in Hialeah, Florida. Acting upon a tip received on July 14, 1986 from an informant that a driving instructor at Fajardo Driving School could obtain fraudulent drivers' licenses, the Florida Department of Law Enforcement (FDLE) undertook an investigation of the Division's driver license examination facility in Hialeah, Florida to ascertain if such licenses were being fraudulently issued by Division personnel. To assist in the investigation, the FDLE employed the services of a paid informant named Orlando Zirio. He was instructed to call "Jorge" at a particular telephone number and attempt to obtain a Florida driver's license. In actuality Jorge was the respondent. After telephoning respondent, Zirio and respondent agreed to meet on August 8 in the parking lot of the La Fonda Restaurant on West 60th Street in Hialeah. The restaurant shared a parking lot with the Division's driver license examination facility. Pursuant to instructions from the FDLE, Zirio told Baez that he was a drug smuggler, that he had lost all identification documents, and that he needed a Florida driver's license with a name different from his own to evade law enforcement officials. Zirio apparently had no luck with respondent that day. A series of meetings between Zirio and Baez took place during the next few weeks with Zirio repeatedly asking Baez to help him procure a driver's license. During such meetings, the FDLE orchestrated all of Zirio's communications with Baez. At some point in their meetings, Zirio told Baez he only had one identification card issued by the City of Key West. When Baez informed Zirio that he must have at least two identification documents to obtain a driver's license, Zirio replied he could not obtain the necessary documents. Zirio was then told to meet one Felix Aravjo who could provide false identification documents. After obtaining a Puerto Rican birth certificate and an American social security card in the name of Orlando Perez from Aravjo, Zirio met again with Baez on August 12 in the restaurant parking lot and handed the two identification documents to Baez. The two then entered the examination facility. With the assistance of a Division license examiner named Peralta, Zirio was issued a driver's license under the name of Orlando Perez. For their services, respondent received $250 and Peralta and Aravjo were each paid $300. Zirio was compensated $500 plus expenses by the FDLE for his undercover activities. Baez was arrested by FDLE agents on August 12, the day the license was issued by Peralta. He was charged with violating Subsection 322.212(2), Florida Statutes, which prohibits certain unlawful acts in relation to a driver's license. After being given a statement of his rights, Baez voluntarily answered in Spanish a series of questions posed by FDLE agents Valdes and Ventura. The interview was tape recorded by Valdes. It was later transcribed into English and reduced to writing by an unknown person. However, Agent Valdes reviewed the transcript and stated it accurately represented the questions asked and answers given during the interview. Baez later pled nolo contendere to criminal charges in September. Adjudication of guilt was withheld by the court. Unlike Peralta and Aravjo, Baez was not incarcerated or placed on probation, but was merely required to cooperate with officials in any further proceedings. Baez desires to continue as a driving instructor since it is the only livelihood that he knows. He has a pending job offer as an instructor if his license is reactivated. He did not deny that he committed the illicit conduct, was arrested and pled nolo contendere but stated that he agreed to help Zirio only after Zirio had made repeated requests for his assistance.
Recommendation Based on the foregoing findings of fact and conclusions of law it is Recommended that respondent be found guilty of violating Rules 15A- 2.09(2)(a) and 15A-2.11(1)(j) Florida Administrative Code, and that his commercial driving instructor certificate card be suspended for one year from date of the emergency suspension. DONE AND ORDERED this 28th day of October, 1986 in Tallahassee Florida. DONALD R. ALEXANDER 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 28th day of October, 1986.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. H. Turner is a Highway Patrol Officer II with the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, having been employed since 1977. By memorandum dated August 10, 1982, to Troop Commanders and Florida Highway Patrol Staff, the Acting Director of the Florida Highway Patrol, Roger C. Collar, gave the following instructions: Effective August 20, 1982, all off-duty employment, including self-employment, shall be reported by all uniformed personnel on a weekly basis to coincide with the weekly report of daily activity. The first reporting period will be August 20-26, 1982, and the report shall be submitted each week along with the trooper's weekly report of daily activity. The attached sample reporting form will be used until permanent forms are developed. The sample reporting form attached to the memorandum required personnel to list the starting and ending time of their "off-duty employment" on a daily basis, the number of hours worked and the Florida Highway Patrol vehicle miles. At the bottom of the form is a signature line, above which is written I certify this is an accurate report of all off-duty employment (including self- employment) worked during the reporting period. The form also requires the signature of the "immediate supervisor" after the word "reviewed." The instructions contained in this August 10, 1982 memorandum are intended to apply to all uniform members of the Florida Highway Patrol. Failure to file a weekly report of off-duty employment or the filing of an inaccurate report would subject the employee to discipline for insubordination. Article XIII of the current collective bargaining agreement between the State of Florida and the Florida Police Benevolent Association pertains to employment outside State government. The Agreement requires advance approval for out- side employment, and provides that approval will not be unreasonably withheld as long as such employment does not conflict with the employee's State employment or with the agency's procedures limiting outside employment. With regard to off-duty police employment, Article XIII provides that approval will be granted if it does not constitute a conflict of interest, does not interfere with the employee's primary duties, is within the employee's jurisdiction and scope of employment, and as long as all mileage placed on a State automobile is paid for by the employee at the statutory mileage rate. General Order Number 19, adopted by reference in Rule 15B-11.03, Florida Administrative Code, contains provisions relating to prohibited acts which may constitute a conflict of interest, including, in certain instances, the acceptance of other employment or other business or professional activity. Paragraph 15 of General Order Number 19 requires a written request and authorization before an employee may accept "part-time employment outside of this Department." The request for outside part-time employment must include a statement of the nature of duties, the approximate hours of duty contemplated and the name and address of the firm. Guidelines for part-time employment are listed. Paragraph 15(b) sets forth the procedures for approval of requests to be employed or compensated by more than one State agency or to hold employment during the normal working hours for which the employee is being compensated by the Department. Paragraph 15(c) contains guidelines for "off-duty police details." Among such guidelines is that an employee may only engage in up to twenty (20) hours per week of such off-duty police details, unless the employee is on annual leave for the week in question or receives approval for work in excess of twenty (20) hours 4 per week. There are no limitations on the hours per week which an employee may devote to employment other than "off-duty police details."
The Issue Whether the Respondent's suspension of Petitioner was in compliance with Chapter 110, Florida Statutes, and Chapters 22A-7 and 22A-10, Florida Administrative Code. Whether the Respondent's suspension of Petitioner should be sustained.
Findings Of Fact C. R. Dykes is a State Trooper employed by Respondent, Department of Highway Safety and Motor Vehicles, in the Division of Florida Highway Patrol in Pensacola, Florida. By certified mail letter dated September 30, 1977, Trooper Dykes, the Petitioner, was notified that he was being suspended for twenty-four (24) hours (three work days) without pay by the Respondent, Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, for: Conduct Unbecoming a Public Employee and Negligence of Duty, as a result of your failure to accept witness subpoenas, and your contact with civil deputies of Escambia County, Florida . . . (Y)ou failed to accept witness subpoenas and repeatedly used profanity when discussing these subpoenas with civil deputies of Escambia County. Trooper Dykes appealed this suspension. Petitioner presented testimony and documentary evidence that at least on one occasion the Respondent did not appear for a contested hearing before the County Court of Escambia County after a witness subpoena had been issued for him and the subpoena was served on Respondent by leaving it with Operator Wise at the distribution center at the Patrol Station. The subpoena was not picked up by the Respondent and the Respondent informed the court that he had not received the subpoena. On July 6, 1977, Trooper Dykes was served with a Grand Jury subpoena by Lieutenant G. C. Wiggins and Sergeant W. A. Clark who supervised Trooper Dykes and the other State Troopers in the Pensacola District. Personal service was deemed necessary. Testimony was entered that because of previous difficulty in serving subpoenas upon Trooper Dykes in the customary manner by having the Troopers pick up their subpoenas from the Radio/Teletype Operators of the Pensacola Florida Highway Patrol Station, Deputy D. L. Roland, Escambia County Sheriff's Office, served a witness subpoena upon Trooper Dykes by serving it at Trooper Dykes' home through his wife, Mrs. Dykes, who accepted service with no apparent objections at 1:30 p.m. on Friday, July 22, 1977. Trooper Dykes called Sergeant Vince Seely, now Lieutenant Seely, thereafter at 4:00 pm, on July 22, 1977, to complain about the witness subpoena served at his home address rather than at the Florida Highway Patrol Station. Lt. Seely testified that during the telephone conversation Trooper Dykes yelled into the telephone, cursed Lt. Seely and the Sheriff's Office, made unfounded accusations, and displayed unprofessional behavior, attitude, and lack of cooperation. The Respondent contended that the telephone conversation was strictly between Sergeant Seely and the Respondent; the service of the subpoena was not urgent; that 1:15 p.m. is not a reasonable time of day for a person working from midnight to 8 o'clock in the morning; that the birth of a child was imminent; and that the subpoena could have been left at the station rather than have been served at his home. There was some evidence presented that the Respondent "gave the dispatchers a hard time who informed him they had a subpoena for him."
Recommendation Sustain the agency action of suspension of Petitioner for the period of 24 hours without pay. DONE and ORDERED this 6th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 6th day of April, 1978. COPIES FURNISHED: C. R. Dykes 644 Timber Ridge Road Pensacola, Florida 32504 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Kirkman Building Tallahassee, Florida 32304
