The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Mr. Marchetti was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on August 30, 2008, and was issued law enforcement certificate number 278005. Mr. Marchetti was not employed by a criminal justice agency on October 30, 2016. On that date, in the early afternoon, Deputy Lawhorn was working as a road patrol deputy with Deputy Brewster, her field training officer (FTO), during an early phase of her training. The deputies arrived at 108 Petals Road in Fort Pierce in their marked patrol unit to serve an injunction for protection, a civil restraining order, directed to Timothy Marchetti. The deputies were to identify the person to be served, provide him a copy of the injunction papers, explain what the order required, and advise of the court date. The deputies knocked on the door, and Mr. Marchetti answered the door. The deputies, wearing St. Lucie County Sheriff's Office uniforms in plain view of Mr. Marchetti, announced that they were there to serve process on Timothy Marchetti and asked to speak with him. Mr. Marchetti falsely identified himself as his brother, Mark Marchetti, with a date of birth of September 15, 1983. Mr. Marchetti added that he was often mistaken for his brother. The deputies asked when Timothy Marchetti would be returning. Mr. Marchetti responded that Timothy was at church with his mother and should return shortly. The paperwork that the deputies had been provided prior to serving the injunction included a driver's license photo, and that photo appeared to match the individual the deputies were talking to. The paperwork also indicated that Timothy Marchetti had an identifying mark, a tattoo on his biceps. When asked to see his biceps, Mr. Marchetti instead showed the deputies his triceps, which had no tattoo. Believing that Mr. Marchetti had lied to them, but wanting to continue to investigate because sometimes brothers do bear close physical resemblance, Deputy Brewster asked Deputy Lawhorn to return to the patrol unit to run the name "Mark Marchetti" through the National Crime Information Center (NCIC) database. At the vehicle, she also pulled up a picture of Mark Marchetti from the DAVID website. That picture did not match the driver's license picture in the deputies' possession or the appearance of the individual that had answered the door. Deputy Lawhorn returned to the doorway, told Deputy Brewster what she had learned and asked him to check the information. After Deputy Brewster went to the vehicle, Mr. Marchetti attempted to leave. Deputy Lawhorn blocked his way and advised him that he could not leave. Mr. Marchetti had not yet been arrested. The deputies had a well-founded suspicion that Mr. Marchetti had lied to them about his identity, and they were continuing their investigation of that crime. At this point, a woman who identified herself as Mr. Marchetti's mother came to the property and encountered Deputy Brewster. She confirmed that the individual in the doorway was her son, Timothy Marchetti. Deputy Brewster returned to the doorway and advised Mr. Marchetti that he was under arrest. After his arrest, the deputies placed themselves on either side of Mr. Marchetti to handcuff him, and Respondent pulled away in "surprise or shock" as he was being handcuffed, but there was minimal, if any, active physical resistance. After his arrest, Mr. Marchetti apologized to Deputy Brewster for lying to him about his identity. Through his deception, Mr. Marchetti resisted, obstructed, and opposed Deputies Lawhorn and Brewster in their execution of legal process. Mr. Marchetti failed to maintain good moral character in that he willfully obstructed law enforcement officers in the lawful execution of their duty to serve an injunction against him by giving them a false name and date of birth. No evidence of any prior disciplinary history was introduced for Mr. Marchetti.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Timothy J. Marchetti in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of five days, followed by a one-year period of probation subject to terms and conditions imposed by the commission. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of January, 2019.
The Issue The ultimate issue for determination at hearing was whether disciplinary action should be taken against Respondent's license to practice osteopathy for the reasons alleged in the Administrative Complaint.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed to practice osteopathy under the laws of the State of Florida pursuant to License Number OS 0001510. Petitioner is the state agency empowered by Chapters 20, 455, and 459, Florida Statutes, to regulate the practice of osteopathy within the State of Florida. The addresses listed by Respondent on the copies of his renewal cards for his license in Petitioner's Composite Exhibit 1 include the address of 76 East McNab Road, Pompano Beach, Florida, 33060. Respondent and Petitioner were parties to a prior disciplinary proceeding. Department of Professional Regulation, Board of Osteopathic Medical Examiners v. Wilfred W. Mittelstadt, Case No. 84-2844 (DOAH 1986). The Final Order of the Board in the prior disciplinary proceeding was entered on November 7, 1986, filed on November 20, 1986, and affirmed per curiam by the First District Court of Appeal on April 27, 1988. Mittelstadt v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988). The Final Order in the prior disciplinary proceeding provides inter alia that during a 3_ year period from the date of the Final Order 3/ Respondent ". . . shall have his office records subjected to random inspections by the Department of Professional Regulation." The Final Order does not specify the purpose of the random inspections. Instead, the Final Order provides as an "additional part of the penalty" that Respondent is prohibited from the use of chelation therapy for the treatment of rheumatoid arthritis, copper poisoning, and vascular disease for a 3 year period. The random inspection of office records, therefore, is separate and apart from the prohibition of practicing chelation therapy for the purposes prescribed in the Final Order. On August 17, 1987, DPR Investigator Golden received a Disciplinary Enforcement Request from the Board. The Board requested Investigator Golden to inspect Respondent's office records if the Respondent was still in practice. The Board's request stated that its Final Order prohibited Respondent from using chelation therapy, that Respondent must appear before the Board with proof of CMEs, 4/ and further requested Investigator Golden to inform the Board if Respondent was still in practice. Investigator Golden spoke with Respondent by telephone on September 8, 1987. Investigator Golden telephoned Respondent's office on September 8, 1987, and asked to speak with Dr. Mittelstadt. A man subsequently identified himself to Investigator Golden as Dr. Mittelstadt. The accuracy of the telephone system, the absence of motive to falsify, and the lack of opportunity for premeditated fraud all support the conclusion that self-identification by the person being called is reliable authentication of the speaker's voice. The voice in the telephone conversation on September 8, 1987, was that of Respondent. Investigator Golden was sufficiently familiar with Respondent to identify the voice in the telephone conversation on September 8, 1987, as that of Dr. Mittelstadt. Investigator Golden based his voice identification on a face-to-face conversation with Dr. Mittelstadt prior to the telephone conversation on September 8, 1987, and on hearing the Respondent speak on the day of the formal hearing outside the hearing room. In addition, Investigator Golden physically identified Respondent under oath at the hearing. Respondent had actual or constructive knowledge of the terms of his probation. Respondent was a party to the prior disciplinary proceeding in which the Final Order was entered on November 7, 1986. Respondent filed a Motion to Stay the conditions of suspension and probation which was denied by the First District Court of Appeal. Wilfred W. Mittelstadt, D.O. v. Department of Professional Regulation, Case No. BR-150 (Fla. 1st DCA January 23, 1987). Respondent appealed the Final Order and the Final Order was affirmed per curiam. Mittelstadt v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988). Finally, Petitioner's Composite Exhibit 2 and Petitioner's Exhibit 3 establish a rebuttable presumption that the Final Order was delivered to Respondent on November 25, 1986. That presumption was not rebutted by testimony from the Respondent. The testimony of Investigator Golden demonstrates that the purpose of the Board's Disciplinary Enforcement Request on August 17, 1987, included inspection of office records. Investigator Golden's testimony also establishes that it was one of his purposes in making the telephone call to Dr. Mittelstadt on September 8, 1987, to request inspection of Respondent's office records. No evidence was presented that Investigator Golden requested access to Respondent's office records, that Respondent denied such access, that Respondent failed to make available his office records for inspection upon request by the Petitioner, or that Respondent willfully and intentionally failed and refused to produce his office records upon official request of the Petitioner. The testimony of Investigator Fischer is irrelevant to the allegation in the Administrative Complaint that Respondent refused to allow inspection of his office records on or about September 7, 1987. Further, the record does not establish that a request to inspect Respondent's office records was ever made by Investigator Golden. The Transcript at page 24 reveals the following facts: I said, "This is Jim Golden, investigator with DPR, Department of Professional Regulation." Q. All right. A. And I said "I'm calling to set up an appointment to come to your office and sit down with you in regards to the terms of your probation, disciplinary action." Do you want to just-- Q. What kind of response did you get? A. Okay. Dr. Mittelstadt refused to discuss his probation terms and even disavowed ever being disciplined by the Board stating, "I have patients to see," and hung up. Q. What did you do in response to that? A. I advised my supervisor and then initiated a supplemental report, probation report, and forwarded it with a copy of the DER to the Board. Did you make further attempts to review his records yourself? A. No, sir. There is no evidence that Petitioner made any other request to inspect Respondent's records on or about September 7, 1987, as alleged in the Administrative Complaint. Nor is there any evidence that Respondent refused such a request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating the terms of his probation on or about September 7, 1987, as alleged in the Administrative Complaint. DONE and ENTERED this 8th day of August 1989, in Tallahassee, Florida. DANIEL 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 8th day of August 1989.
The Issue The issue presented for decision herein is whether or not Respondent, Hazel Marie Bowling, is qualified to hold a Certificate as a law enforcement officer in Florida.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, stipulation of facts, and the entire record compiled herein, hereby make the following relevant factual findings. Respondent, Hazel Marie Bowling, was certified by the Criminal Justice Standards and Training Commission on July 3, 1979, and was issued Certificate Number 02-23702 as a law enforcement officer. On approximately December 17, 1981, Respondent was adjudicated guilty of the offense of filing a false report to law enforcement authorities, a misdemeanor involving perjury or false statement. (Stipulation of the parties) As mitigating factors, Respondent, through representative Henry C. Jones, pointed out that motions for a new trial and for an arrest of the judgment, referred to hereinabove, had been made but were "erroneously" decided, at least in the minds of Respondent and representative Jones. Respondent also points to the fact that she has been hired by the Hendry County Sheriffs" Department as a dispatcher and that to obtain that employment, she was subjected to a background check and was cleared by that agency for the dispatcher's position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent's certification as a law enforcement officer in Florida. RECOMMENDED this 7th of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 9th day of January, 1985.
Findings Of Fact In their Joint Prehearing Stipulation, the parties stipulated to the following facts: On February 6, 1990, the Complainant wrote a letter to the Department complaining of Petitioner's alleged sexual misconduct "during the late 70s" during her office sessions with Petitioner. On February 14, 1990, the Department sent a form letter to Complainant requesting her to sign a release of medical records. On February 28, 1990, the Department opened the underlying case and forwarded the file to an investigator to try to obtain a medical release. On April 5, 1990, the Complainant was interviewed by a DPR investigator concerning her complaints of sexual misconduct by Petitioner while she was his patient. On April 5, 1990, the investigator obtained from the Complainant a signed patient consent form for the release of copies of her "general medical records with psychiatric consultations or secondary diagnoses" maintained by Petitioner between 1976 and 1982. No other release was ever signed by the Complainant. The Department issued a subpoena for Petitioner's records on or about April 26, 1990. Petitioner was notified of the complaint on April 30, 1990 through his attorney, Mark P. Lang, Esquire, who denied the allegations on behalf of his client. Copies of the Complainant's medical and psychiatric records including consultations and diagnoses, comprising 144 pages, were provided to the Department by Petitioner's attorney on July 5, 1990. On August 2, 1990, the field investigation was deemed complete and the investigative report was forwarded to Tallahassee. On June 19, 1991, the probable cause panel, consisting of James N. Burt, M.D., the Chairman, and Ms. Pamela A. Campbell, the lay consumer member, considered Respondent's case as reflected by the transcript of the meeting. The members of the probable cause panel voted to find probable cause and file the administrative complaint as drafted by the Department. This was memorialized the same day, stating that probable cause was found on violations of subsections 458.331(1)(x) and (j), Florida Statutes. The administrative complaint was filed on July 23, 1991. On November 13, 1991, Larry G. McPherson, Jr., Esquire, assumed the prosecution of this case. A Notice of Substitution of Counsel was entered on November 13, 1991, by attorney McPherson. Complainant's deposition was taken by Respondent on November 14, 1991. At the deposition, the Complainant again refused to sign any release for psychiatric records other than those produced by the Petitioner. Petitioner (then Respondent) filed an Amended Motion for Dismissal or Sanctions on or about December 27, 1991. Respondent (then Petitioner) filed a Response on January 3, 1992. The Department's "Closing Order" and "Notice of Dismissal" was filed on or about February 10, 1992. Petitioner is a prevailing small business party in this matter. Petitioner has incurred reasonable attorney's fees and costs in excess of $15,000.00 and no proof of attorney's fees will be required at the hearing. The following findings are based on proof at hearing: The February 6, 1990, letter from the Complainant to the Department included the following language in the last paragraph: . . . I was a patient of Dr. Wise. I saw him during the late 1970's when I was a teenager. I was sexually abused during office sessions and it has taken years of therapy for me to be able to write this letter. I want to know what further steps can be taken to see that Dr. Wise loses his license to practice medicine. I am willing to testify. The Department utilizes two medical records release forms: one form is an Authorization for Release of Patient Information, the other is a Release of General Medical Records with Psychiatric Consultations or Secondary Diagnoses. The first form covers all medical records at all times and all treating physicians. The second form is a general release used when psychiatric records are involved, and specifically notices the patient that signing it waives the psychiatrist-patient privilege with respect to a particular physician for a specific time period. Ms. Lammert does not recall which release form was sent to the Complainant with the Department's letter of February 14, 1990. By letter dated February 24, 1990, the Complainant responded to the Department's request for release of medical records as follows: I will not sign a blanket authorization for release of my medical records. I am more than willing to see that you have access to records and information that have a direct bearing on the matter concerning Dr. Wise. I am interested in seeing justice served, but I refuse to subject myself to further abuse by a system that shows itself to be biased in favor of the physician and has blatant disregard for people who have been victimized. I await your reply. On or about July 19, 1990, a Department field investigator filed a written note stating that a signed patient release had been received from the Complainant. However, the note specifically stated that the release "did not include psychiatric consultations." The investigator also specifically noted that "Complainant is currently undergoing psychiatric treatment." The only interview of the Complainant by a Department investigator prior to the filing of the Administrative Complaint was conducted on April 5, 1990, in a psychiatric hospital to which the Complainant was voluntarily admitted. The interview on April 5, 1990, was "terminated prematurely" because of the Complainant's upset emotional state and difficulty in staying composed during the interview. During the course of the interview the Complainant described specific acts of sexual misconduct by Dr. Wise which she said took place during the time she was his patient. The investigator's report of the interview also included the following additional information: A part of her [Complainant's] therapy now is to divulge all that had occurred during her sessions with the subject. She stated further that being hospitalized was a measure she took in anticipation and preparation for this interview. She added she would like to see justice served in this matter and is willing to testify. * * * During a brief discussion with Dr. Fishman, he stated that [Complainant] was being hospitalized temporarily, and is expected to be released within a week . . . . He added should a hearing become necessary, she [Complainant] will be competent to testify. The investigator's report of the April 5, 1990, interview concluded with the following "observations": [Complainant] is articulate and expressed much concern to cooperate. She is unable to recall specific dates however, she could recall specific events. Initially, she maintained composure, however, she became emotional when she recalled what the subject did to her. She became more emotional when questioned as to what he coerced her to do. The information she was able to provide was credible. She expressed great interest in pursing this investigation; even though, she was unable to remain composed, thus terminating the interview prematurely. The investigative file provided to the Probable Cause Panel of the Board of Medicine included, among other things, the Petitioner's complete medical records of his treatment of the Complainant, the reports prepared by Department investigators, and all other materials collected by the investigators. When Mr. McPherson entered his Notice of Appearance in this case on November 13, Petitioner's deposition of the Complainant had been scheduled for the next day. Mr. McPherson met with the Complainant and her husband the day before the deposition and told her she would probably be asked to sign a release concerning her current psychiatric records. It was Mr. McPherson's understanding that she did not know whether she would sign such a release. During the Complainant's deposition she answered many questions concerning her hospitalization, physicians and diagnoses, but when Petitioner's counsel began to question her about recent medical and psychiatric conditions she became nervous, upset, and eventually refused to answer his questions. When she refused to sign a general release for all of her medical and psychiatric records, Petitioner ended the deposition. Petitioner then filed his Motion for Dismissal on December 27, 1991. After considering Petitioner's Motion for Dismissal, Mr. McPherson again talked to the Complainant. He understood from that conversation that she would not change her mind and that she did not want to talk any further about her mental and physical condition because it was too much of a burden on her to relive some events and would be an embarrassment to her family. As a result of information extracted during the Complainant's deposition about certain aspects of her psychiatric and medical history, his conversation with her when she stated she would not testify further nor sign a general release, and research concerning the issues raised by Petitioner's Motion to Dismiss, Mr. McPherson determined that he could not go forward with the prosecution. Accordingly, the case against Petitioner was dismissed on February 10, 1992.
Findings Of Fact The Petitioner is a black woman. From January, 1978, until May 5, 1979, the Petitioner was employed as a clerk/typist by the Respondent. The Petitioner applied for employment with the Respondent during January, 1978. The positions she applied for were, in order of preference, Deputy Sheriff, Custody Officer, and clerk/typist. At the time of her application, the Petitioner was not a citizen of the United States, and she was therefore not eligible for either of the first two positions. She received minimally passing scores on the typing test (after one failure) and on the spelling test; she was hired as a clerk/typist. She was placed on the night shift at the vice squad (now called the Organized Crime Bureau). Initially, the Petitioner worked a portion of the day shift so that she could become familiar with the responsibilities of the position through exposure to other clerks in the Bureau who performed the same functions during other shifts. The Petitioner's responsibilities were to type or transcribe the vice officers' reports from tape recordings, to answer the telephone and take messages where appropriate, and to relay messages to agents in the field by radio. It was necessary for the Petitioner to become familiar with police language, to get used to the peculiarities of the agents' taping of reports, and to learn to use the radio, including the "10-code." The duties were not such, however, as to require prolonged training, and the Petitioner was adequately oriented into the job. The Petitioner's performance at this job was inadequate. Her typing and spelling were very poor, and she misunderstood or mistranscribed portions of the tapes frequently. Often her work needed to be redone or completed by the clerks who worked the day shifts. Mistakes of this sort are common in a position such as that the Petitioner hold during a training period, but the Petitioner's performance did not improve. Her first evaluation was completed on February 22, 1978. On a point system which has fifty-nine possible points, the Petitioner was given a total rating score of 12, which is a "conditional" rating. The evaluation included the following summary of her performance: Miss Voce has a great deal of trouble with typing and spelling. She has not grasped the procedures or the complexities of the vice and narcotic office work. Perhaps she would have more ability in some other division where there is not so much typing. In Vice-Intelligence Division she is required to type reports, search warrants and state- ments, keep files up to date, answer phones, dispatch on the radio and many other tasks. She is willing to do what she is told, but her ability is not commensurate with her willingness. By memorandum dated March 8, 1978, her supervisor recommended that her employment be terminated on account of inability to fulfill the requirements of the position. Rather than terminating her, the Respondent authorized to transfer her from the Vice and Intelligence Unit, where her work was a significant handicap to the operation of the office, to the Central Sub-Station. The transfer was effective March 23, 1978. At the Central Sub-Station, the Petitioner's primary responsibility was answering all incoming telephone calls, directing the calls to the appropriate person, and taking messages where appropriate. She was also called upon to type a daily log, and to do miscellaneous duties. Initially, her performance in this job was satisfactory. On December 7, 1978, the Petitioner's second formal evaluation was completed. Of a possible total of fifty-two points, the Petitioner was given a total rating score of 30, a "satisfactory" evaluation. She received a merit pay increase. At approximately that time, however, the Petitioner's performance of the job began to deteriorate. She became lax in the handling of calls, and was frequently not at her desk. She was frequently rude on the telephone, and did not relay all messages she received. Her supervisors counseled her about being away from her desk and about being polite on the telephone, but her performance did not improve. The Petitioner was not getting along with coworkers, and her performance as an employee was steadily declining. During approximately April, 1979, the Petitioner herself went to the Respondent's Personnel Director and requested that she be transferred to another position. Her supervisor apparently agreed that a transfer would be appropriate, and a transfer to the Central Records Office was authorized by memorandum dated May 2, 1979. The transfer was to be effective May 7, 1979 By memorandum dated May 4, the Petitioner advised her supervisor at the Central Sub-Station that she would not take the job at Central Records because it was for the 4:00 p.m. to midnight shift, and she had family responsibilities which conflicted with that shift. The transfer was to be effective May 7, 1979, and the Petitioner did not appear at the Central Records Office. On May 9, the Petitioner was offered a position as a clerk/typist at the county stockade. She visited the stockade, but decided that she did not want that position because it required her to drive a long way over crowded roads, and because she would have been the only woman at the stockade. On May 9, 1979, a new evaluation was issued with respect to the Petitioner's work at the Central Sub- Station. The evaluation was required because of the transfer. She was given a total rating score of 11 out of 52, a "conditional" rating. On May 10, the Petitioner appeared at the Respondent's personnel office to see her evaluation, tore it up and threw it in the waste basket. She left the office upset. The Respondent removed the Petitioner from its payroll effective May 4, 1979. The Petitioner asserts that she was transferred from the Vice and Intelligence Unit to the Central Sub-Station not because of deficiencies in the performance of her work, but on account of her race. She further asserts that the transfer from the Central Sub-Station to the Central Records Office or to the stockade was motivated by racial rather than by performance factors. The only evidence in support of these allegations that was offered at the hearing is the fact that the Petitioner is black and that she was transferred, and several racially biased statements that were made to the Petitioner by coworkers. The fact of the Petitioner's race does not in itself establish discrimination. Racially biased statements that might have been made in the Petitioner's presence are reprehensible, but do not establish that she was transferred on account of race. Indeed, the evidence conclusively establishes that she was transferred from the Vice and Intelligence Unit to the Central Sub-Station because her job performance was inadequate, and was interfering with the functioning of the office. The evidence further establishes conclusively that the transfer from the Central Sub-Station was motivated by poor job performance. There is no evidence in the record from which it could be concluded that the Petitioner was improperly evaluated, or that any of her supervisors made any decisions with respect to her evaluations or her transfers on account of race. The Petitioner did not offer any evidence which would establish that white employees were treated preferentially by the Respondent, or that black employees were discriminated against. A black woman was given the position at the Vice and Intelligence Unit that the Petitioner once held. She performed very well, was evaluated accordingly, and ultimately left the office only because she had a better opportunity with the Federal Government. There are other black employees of the Sheriff's Office, including the Petitioner's sister, and no evidence was offered to establish that any of these employees have been improperly transferred, or have been treated differently than white employees. The Notice of Failure of Conciliation issued by the Florida Commission on Human Relations was originally issued on May 6, 1980. The Petitioner was not provided an initial copy of the Notice, and the Commission on Human Relations reissued it on May 29, 1980. The Petition for Relief from an Unlawful Employment Practice was filed by the Petitioner within thirty days of service of the reissuance, but not within thirty days of the original issuance.
The Issue The issue in this case is whether, on December 29, 1997, Respondent, a licensed massage therapist, engaged or offered to engage a client in sexual activity while practicing massage therapy, in violation of Section 480.0485, Florida Statutes, and Rule 61G11-30.001(1)(d), Florida Administrative Code (1997).
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties Keys is a Florida-licensed massage therapist. Her license, numbered MA 19097, was issued on March 27, 1995. She is subject to the regulatory and disciplinary jurisdiction of the Board. At all times material, Keys worked at Shogun Health Spa, Inc. ("Shogun"), which was located in Lauderhill, Florida. The Charge The Department has charged Keys with one count of engaging or offering to engage a client in sexual activity, in violation of Rule 61G11-30.001(1)(d), Florida Administrative Code (1997).1 The incident is alleged to have occurred at Shogun on December 29, 1997. The "client," allegedly, was an undercover sheriff's detective. Ultimate Factual Determination The Department proved that on December 29, 1997, on the premises of Shogun, a white, brown-haired masseuse using the name "Debbie" offered sexual services to an undercover detective who was posing as a client in connection with an investigation of suspicions that Shogun was a bordello. Based on the evidence in the record, however, the factfinder is unable to form a firm belief or conviction, without hesitancy, that "Debbie" was, in fact, Keys. Therefore, Keys is not guilty of the offense charged. It will be seen that the foregoing factual determination, which is dispositive, does not constitute an affirmative finding about what Keys did on the date in question. Nor is a finding made here regarding who "Debbie" actually was—— or that "Debbie" was not Keys. Although Keys argued that she was not at work on December 29, 1997, being instead, she claimed, on vacation, she adduced no evidence that she was someplace else that day, and so no affirmative finding can be made in this regard. The Department's failure to prove, clearly and convincingly, that "Debbie" and Keys were one and the same person necessarily renders all of the other evidence irrelevant, because it is immaterial that someone besides Keys engaged in misconduct. Understanding, however, that it may be enlightening to explicate what the evidence showed as a means of explaining how the evidence fell short of establishing the wrongdoer's identity by the requisite quantum of proof, the following summary of the pertinent proof, as viewed by the factfinder, is offered.2 Keys' Physical Description and Identifying Information: A Baseline According to the Application for Licensure that Keys submitted in January 1995, Keys is five feet, three inches tall with blue eyes. Her weight, at that time, was 131 pounds. She was born on November 25, 1956. Keys' social security number is disclosed in the application. A photograph of Keys was attached to the application. The original was probably a color picture, but the copies introduced in evidence (four copies are included in Petitioner's Exhibit 1) are black and white. The photograph is grainy from being reproduced more than a few times. Nevertheless, the image of a woman's face is sufficiently visible that anyone familiar with Keys' appearance should be able to tell that it is her. To everyone else, the photograph depicts a white female adult of indeterminate age with long, dark hair. The descriptive data from Keys' application is considered to be highly reliable because it was put together nearly three years before the incident in question, at a time when Keys had no discernable motive to be untruthful. Moreover, Keys signed the application before a notary public under a certificate that provided, in part, as follows: I have carefully read the questions in the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein are true and correct and that the photograph attached to the application is a photograph of me. Should I furnish any false information on this application, I understand that such action shall constitute cause for the denial, suspension or revocation of any license to practice in the state of Florida the profession for which I am applying. (Emphasis added). The Department's Evidence The "Event Report." Detective Edward Domako of the Broward Sheriff's Office was involved in the undercover investigation of Shogun. Through Detective Domako, the Department introduced a one-page exhibit which he described as a Broward Sheriff's Office event report. This undated document contains information about two "arrestees," one of whom is "Debbie Lynn Keys." In response to a leading question from the Department's counsel, Detective Domako agreed that he had prepared this report around January 5, 1998. On cross- examination, however, the detective admitted that he had never personally been involved with Keys. It is undisputed that the information set forth in this event report was not based on Detective Domako's personal knowledge. Rather, he claimed to have taken the data from another detective's probable cause affidavit, which is discussed below. Detective Domako also testified that "some of this information [in the event report] may have been garnered from" Keys herself, but this statement has been given no weight because (a) the witness was simply speculating and clearly did not know one way or the other if he were correct and (b) no other evidence corroborated his speculation. In this event report, Keys is described as a white female, five feet, three inches tall, 136 pounds, with long, straight, brown hair, blue eyes, and no visible scars, marks, tattoos, or deformities. A residence address is listed which matches her known address at the time. The description of Keys in the event report is similar to that contained in her application for licensure. The problem, however, is that the information in the event report is not consistent with the description of Keys contained in the probable cause affidavit from which Detective Domako asserted he had derived the data. See Paragraph 29, infra. Ironically, the undated event report prepared by a detective without personal knowledge concerning Keys' physical appearance is the only piece of evidence that the Department offered which matches the description of her found in the Department's application file. Because Detective Domako was plainly mistaken about the source of the information he put in the event report; because the event report was not based on the preparer's personal knowledge; and because the undated report was based not on information provided by someone who allegedly had seen Keys engage in the alleged misconduct (for that witness described her differently) but instead upon information acquired after-the- fact from a source or sources unknown, Detective Domako's testimony and the event report are unreliable proof of Keys' identity as the wrongdoer. Hence, this evidence has little or no probative value and is certainly not clear and convincing proof that Keys engaged in the alleged misconduct on December 29, 1997. Officer Ho's Testimony. Jimmy Ho is a police officer with the City of Lauderhill. Officer Ho was involved in the undercover investigation of Shogun. Officer Ho was present at Shogun on January 5, 1998, when detectives from the Broward Sheriff's Office executed a search warrant on the premises. He was there to assist the sheriff's detectives and described his role as that of "spectator." Officer Ho detained several suspects in a room at Shogun. He claimed that Keys was one of the detainees, and that she had identified herself to him by providing her driver's license, which he reviewed to make a positive identification at the time. Neither Officer Ho nor anyone else at the scene on January 5, 1998, however, bothered to make a copy of the driver's license supposedly tendered by "Keys." No one took "Keys'" fingerprints or photograph either. Officer Ho had not seen "Keys" before January 5, 1998. At no time did he observe her performing or offering to perform any improper acts. Asked at hearing to describe "Keys," Officer Ho testified: "All I can remember, she's a white female, that time, short hair. . . . I think [her hair] was brown color [and not blonde]. . . . I'd say she was somewhere between five [feet]-three [inches] and five [feet]-four [inches tall]." Final Hearing Transcript ("T.") at pp. 107-08. The facts to which Officer Ho testified regarding "Keys'" appearance were not distinctly remembered; his recollection was neither precise nor explicit. Undoubtedly hundreds if not thousands of women in Broward County would satisfy "Keys'" physical profile as generally described by Officer Ho. Moreover, incidentally, his testimony that "Keys'" hair was short does not match the description in Detective Domako's event report, where she is said to have long hair. For these reasons, Officer Ho's testimony is minimally useful at best. Moreover, even if Officer Ho's testimony clearly and convincingly proved that Keys was present at Shogun on January 5, 1998, that fact would not establish, even by a preponderance of evidence, that Keys engaged in the alleged misconduct on December 29, 1997. The Investigative Action Report. Detective Steven Drum of the Broward Sheriff's Office, who was involved in the undercover investigation of Shogun, was the Department's key witness. He is, in fact, the one and only witness to the alleged sexual misconduct that Keys is charged with having engaged in on December 29, 1997. Detective's Drum's account of his visit to Shogun on December 29, 1997, is set forth in an Investigative Action Report that he prepared on January 5, 1998. In his report, Detective Drum recounted a one-hour massage session with "Debbie" who, he claimed, had offered to perform various sexual services. According to Detective Drum's report, "Debbie" was a white female in her mid-30's with brown hair, brown eyes, and a medium build. The Probable Cause Affidavit. Detective Drum wrote a summary of his December 29, 1997, encounter with "Debbie" in a probable cause affidavit signed January 6, 1998. In his probable cause affidavit, Detective Drum described "Debbie" as a white female with brown hair, brown eyes, five feet, six inches tall, with no visible scars, marks, or tattoos. The affidavit contains Keys' social security number and date of birth. Detective Drum's Testimony. At hearing, Detective Drum's testimony regarding the December 29, 1997, incident closely followed the Investigative Action report and probable cause affidavit. Asked to describe Keys, Detective Drum responded: "She's a white female, approximately five-six, medium build with brown hair." T. 144. Detective Drum testified that he saw "Debbie" again at Shogun on January 5, 1998, when the search warrant was served, and that "Debbie" identified herself to him as Keys. He testified that there was "no doubt" in his mind that the woman who identified herself as Keys on January 5, 1998, was the "Debbie" who had offered him sexual services on December 29, 1997. The factfinder, however, has considerable doubt that Detective Drum possessed any meaningful present recollection either of "Debbie's" appearance or his encounter with her nearly four years ago. The details of his testimony obviously were drawn from the written documents he had prepared contemporaneously. Significantly, moreover, Detective Drum did not mention in either the Investigative Action Report or the probable cause affidavit that on January 5, 1998, the woman he now has no doubt was "Debbie" had told him her name was Deborah Keys——a fact that, had it occurred, would or should have been worthy of note. Taken as a whole, Detective Drum's testimony does not convincingly link Keys to the December 29, 1997, incident. He described "Debbie" contemporaneously as having brown eyes——but Keys' eyes are blue. He also wrote, soon after the alleged misconduct, that "Debbie" was five feet, six inches tall; Keys, however, is a material three inches shorter than that. Detective Drum is an experienced law enforcement officer whose business it is to observe details about suspected perpetrators. It is telling, therefore, that he was mistaken about two obvious details concerning Keys' appearance. Given that there were only a few physical characteristics with which to work in this case (hair color and length, eye color, height, weight, age), and most of them subject to change, Detective Drum's failure to identify accurately two relatively immutable characteristics of Keys was sufficient to render his testimony that the "Debbie" of December 29, 1997, was the "Keys" of January 5, 1998, less than clear and convincing.3 Other Considerations The factfinder found it striking that the Department made relatively little effort to identify Keys conclusively as the wrongdoer. It would have been a simple matter to have subpoenaed her for the final hearing, so that a definitive identification could be made, or, failing that, to have obtained photographs or videotapes of her during discovery upon which a persuasive in-hearing identification could be based. The Department's failure to take these or similar steps toward meeting its heavy evidential burden——particularly given the paucity of information that it had concerning Keys' appearance, about which nothing unique or distinguishing was elicited—— reflected negatively on its entire case. But worse than that, the Department did not show to a single witness the one photograph of Keys that it did have in its possession, and which it introduced into evidence. If, for example, Detective Drum had testified that the woman in the picture attached to Keys' Application for Licensure is "Debbie," then the Department might have proved its case; at least the decision would have been closer. But Detective Drum was not asked to identify the photograph of Keys. Because the Department knew that it had this photograph of Keys, its failure to question Detective Drum (or anyone else) about the picture is inexplicable——unless the detective could not identify the photograph and therefore his answer to the obvious question would not have been helpful. In this case, where the accused was not physically present at hearing and the only eyewitness to the alleged misconduct described her inaccurately and was not asked to identify an available photograph, the Department's heavy burden of proof has not been met; to find otherwise, the factfinder, in effect, would need to assume that the right person was charged, which he will not do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department having failed to prove the charges brought against Keys by clear and convincing evidence, it is RECOMMENDED that the Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2001.
The Issue The issue in this case is whether Respondent is guilty of the commission of an act of violence or the use of force on any person except in the lawful protection of oneself or another from physical harm.
Findings Of Fact Respondent holds the following licenses: Class "D" Security Officer, Class "G" Statewide Firearm License, and Class "MB" Security Agency Manager. He has held the Class "D" and "G" licenses since September 22, 1992. He has held the Class "MB" license since January 22, 1993. By an Emergency Order of Suspension entered March 4, 1993, Petitioner suspended all three licenses held by Respondent. The suspension was based on Respondent's arrest on February 26, 1993, for aggravated assault with a deadly weapon upon Kimo Little, such act not being in defense of self or another. Respondent is employed by Castlewatch Security Company, where he has worked for one year and three months. For about one and one-half years, Respondent has been negotiating with the current owner of the company for the purchase of the company. Respondent has an associates degree in business from Penn State University. He has been employed in the security business, in and outside Florida, for a little more than six years. In the course of performing his security guard work, Respondent regularly uses a Citizens Band radio in order to maintain contact with security guards in the field, when Respondent is not in the field, or with the main office, when Respondent is in the field. Security guards with other companies also use the CB radio in this fashion, and frequently conversations among security guards take place during the evening hours. On the evening of February 25, 1993, Respondent was on- duty, alone, at Roger Dean Chevrolet. At about 10:30 pm, he witnessed a bad car accident, which left him in an agitated state due to the seriousness of the injuries that he observed. About one-half to one hour later, Respondent was on the CB radio when he overheard Kimo Little and another man engaged in a hostile conversation involving swearing and cutting off the conversations of other security guards. Respondent intervened, advising the main perpetrator, Mr. Little, to discontinue the conversation, or at least the swearing. The conversation between Respondent and Mr. Little became heated. Eventually, they agreed to settle their differences 1/ by fisticuffs at the parking lot of a closed McDonald's. Respondent had not previously arranged fights by way of CB radio. However, on at least two or three occasions, Mr. Little has detected differences of opinion between him and other users of the CB radio and determined the differences to be of such gravity as to require their settlement through combat. While still on the radio with Respondent, Mr. Little stated that he intended to "kick [Respondent's] ass." Mr. Little also explicitly informed Respondent that the fight was to be a "fair fight" without guns. Mr. Little beckoned a friend, Paul LeClair, to drive Mr. Little to the McDonald's for the fight. It is unclear why Respondent went to meet Mr. Little except to fight. At the time, Mr. Little neither knew Respondent's identity or where he worked. When Respondent was relieved at about 11:30 pm, he drove his utility vehicle over to the dimly lit, empty parking lot of the McDonald's. After a quick tour of the parking area, Respondent saw no one and was driving toward the exit when Messrs. Little and LeClair appeared in the latter's truck. In a clearly irritated tone, Mr. Little advised Respondent by radio, "I see you. I'm going to hunt you down like a dog." He then jumped out of Mr. LeClair's vehicle and ran toward Respondent's vehicle, waving his arms in an angry, beckoning fashion. Although Respondent could have left the parking lot, he instead turned his vehicle around and drove toward Mr. Little. As he approached Mr. Little, he got a good view of his adversary. Mr. Little is six feet tall and a menacing 270 pounds. Somewhat smaller than Mr. Little, Respondent quickly surveyed Mr. Little's superior size and enthusiasm, as evidenced by his shouting to the approaching Respondent: "I'm going to tear your fucking head off." Respondent also noted Mr. Little's potential ally, Mr. LeClair, who was standing beside his truck. Respondent quickly decided not to fight Mr. Little. Instead, Respondent drew the 9 mm handgun that he keeps on hand for security work, aimed it at Mr. Little, and warned him, "Come any closer and I'll blow you away." He added for emphasis, "Back off, motherfucker." The distance between the two gentlemen was about three meters. Undaunted by the weapon, Mr. Little implored Respondent, "Just get out of the truck and put the gun away. I'll whip your ass like a man." However, Respondent chose instead to leave the parking area. As he drove away, he called the police and informed them of the situation. Shortly thereafter, the Cape Coral police arrested Respondent, after determining that he had drawn his weapon but had not seen a weapon on Mr. Little. There is no evidence that any criminal case has been initiated or prosecuted.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State, Division of Licensing, enter a final order dismissing the Emergency Order of Suspension. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1993.
The Issue The issue is whether Respondent, a law enforcement officer, is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a certified law enforcement officer, holding certificate number 92165. At all material times, the DeSoto County Sheriff’s Office employed Respondent until Respondent resigned shortly after giving the statement described below. In June 1995, a female narcotics informant alleged that she had traded sex for money with Respondent. The DeSoto County Sheriff’s Office commenced an investigation. According to the female informant, who did not testify in this case, there were no witnesses to the alleged incidents. After interviewing the female informant, the DeSoto County Sheriff’s Office or the female informant filed a criminal complaint with the State Attorney’s Office. On July 18, 1995, the State Attorney’s Office filed a memorandum declining to prosecute Respondent because the “[o]nly evidence is the word of an admitted prostitute and drug-user. Under these circumstances, [we] cannot prove the allegations beyond a reasonable doubt.” After receiving a copy of this memorandum, the DeSoto County Sheriff's Office scheduled an interview of Respondent concerning the allegations of the female informant. A lieutenant who had not previously conducted an internal affairs investigation assumed responsibility for conducting the interview. The lieutenant contacted Respondent on the afternoon of July 18, told him that he was conducting an internal affairs investigation, and directed him to give an interview the following afternoon. The lieutenant, who had a superior rank over Respondent, did not inform Respondent of the nature of the investigation or of the identity of the complainant. The interview of Respondent took place on July 19, 1995, starting at 1:00 p.m. In addition to Respondent and the lieutenant, a major and captain of the DeSoto County Sheriff’s Office were present, as was a sergeant, who was present at the request of Respondent as an additional witness, but not an advisor. The lieutenant had a package of information at the start of the interview, but did not give it to Respondent until after the interview was completed. The package included a Notification of Charges/Allegations, stating that from January 1991 through June 1995 Respondent allegedly engaged the named female informant in prostitution at least ten times at Respondent’s residence. The form advised that, if sustained, these allegations constituted conduct unbecoming a deputy. The package also included an Admonition Form. This form, which is prepared by the DeSoto County Sheriff's Office, states that “prior to questioning an accused member . . ., [any member of the DeSoto County Sheriff's Office shall] present the following admonition to said accused . . . for the member to read.” The Admonition states in its entirety: I wish to advise you that you are being questioned as part of an official investigation of the DeSoto County Sheriff's Office. You will be asked questions specifically directed and narrowly related to the performance of your official duties and/or your continued fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and Constitution of the State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further wish to advise you that if you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which, if sustained, could result in your dismissal from the DeSoto County Sheriff's Office. If you answer questions, as required, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. However, these statements may be used against you in relation to subsequent department charges. The lieutenant commenced the interview by stating that the purpose of the interview was an allegation of some misconduct and then reading the Admonition. After reading the Admonition, the lieutenant asked Respondent if he understood the Admonition, and Respondent replied that he did. Without letting Respondent read the Admonition, the lieutenant then asked Respondent about the allegation that he had engaged in sex for money at least ten times with the named female informant. Respondent admitted to a single incident of sexual intercourse four or five years ago, without any mention of any payment, but denied any other sexual relations. He explained that he had given her some money for information and for personal matters--as Respondent had known her socially for over 20 years and each was a friend of the other’s family. At the conclusion of his questions, the lieutenant asked the major if he had any questions. The major asked if Respondent would take a polygraph test and if Respondent knew that the female informant had taken and passed one. The major asked a few more questions, largely repeating the questions asked by the lieutenant. After the major was finished, the lieutenant asked Respondent to sign the Notification and Admonition forms. He then asked Respondent to raise his right hand and swear that the statement that he had given was the ”truth, so help you God.” After obtaining an affirmative answer from Respondent, the lieutenant proceeded to go over some of the forms when Respondent interrupted him, saying: Wait, wait, wait, wait. I . . . I . . . I . . . I can’t do this here. I won’t be able to live with myself. There was more than one time. I . . . I . . . I just can’t do this now. I’m not going to lie. It was more than one time. I’ll take the polygraph. Um . . . I think it was like . . . four times. I . . . I . . . I just can’t do that. The lieutenant asked Respondent if he had exchanged money for sex, and Respondent answered in the affirmative. He said that on two occasions he gave her about $15 or $20 and the rest of the time the money was for information. Respondent said that the sex acts took place only when he was off-duty and out of uniform. The lieutenant asked, “I guess you realize that that’s considered prostitution, right?” Respondent answered, “Yeh. That’s about it.” The interview continued, although no material information emerged. Respondent apologized for lying the first time during the interview and stated: “Jap [Respondent]. You sitting here lying to these people. You done worked for these people for eight years. You ain’t never lied to them. So why are you going to sit here and lie? . . . I just couldn’t walk out of here knowing that I had told you a lie.” Respondent also mentioned that a mutual acquaintance of his and the female informant had told him of the allegations and that Respondent had told his attorney the truth. Respondent's statements do not detail the two occasions on which Respondent paid money to the female informant, had sex with her, and did not obtain any information. They were friends for over 20 years and knew each other's families; the possible explanations are numerous. During the interview, Respondent expressed considerable remorse for lying initially and having sex with a known prostitute and drug abuser. Without more, given the background between the parties, Respondent's admission of this moral lapse does not constitute an admission of the crime of prostitution or a failure of good moral character. Advice of already-retained counsel might have clarified Respondent’s testimony by differentiating between the shame that Respondent felt and possible commission of a crime or failure to maintain good moral character. Certainly, contemporaneous legal advice might have lent meaning to Respondent’s dubious admission to the legal conclusion that he committed the crime of prostitution; the record provides no reason to believe that Respondent was aware of the legal elements of the crime, which another deputy testified had been prosecuted only once in the many years in DeSoto County. Another source of confusion is the Admonition itself. In general, the Admonition addresses the possibility of criminal and employment sanctions, but not professional discipline against Respondent’s law enforcement certificate. Most misleading is the second-to-last sentence, advising, “If you answer questions, as required, neither your statement nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding.” This statement tells Respondent that he is required to answer questions, although clearly he is not. Following the statement concerning employment with the DeSoto County Sheriff's Office, this statement mentions criminal proceedings, but nowhere is there any statement of Respondent’s due-process rights regarding a disciplinary proceeding against his certificate. Respondent was confused in the interview due to the inadequate and untimely disclosure of the nature of the charges; the misleading statements contained in the Admonition; the reading of the Admonition by the lieutenant, rather than Respondent's being allowed to read the Admonition itself, as the Admonition allows Respondent to do; the belated administration of the oath; the alternative interrogations by the lieutenant, then the major, and then the lieutenant; the failure to explain all of Respondent’s rights; and the failure to provide Miranda rights. These serious deficiencies undermined the reliability of Respondent’s arguably inculpatory statements to the point that they are inherently unreliable and not even, on their face, inculpatory.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1997. COPIES FURNISHED: Paul D. Johnston Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert M. Bader Robert M. Bader Law Office Post Office Box 3551 Port Charlotte, Florida 33949 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in the case are whether the allegations of the Administrative Complaint are true, and, if so, what disciplinary penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was certified by the Petitioner as a law enforcement officer, holding certificate 267907. At all times material to this case, the City of Sarasota, Florida, employed the Respondent as a law enforcement officer. On the night of January 4, 2010, the Respondent was on duty, riding in a patrol car driven by her work partner, Officer Coppinger. The patrol car contained a laptop computer that was connected to the Florida Driver and Vehicle identification Database (DAVID), a law enforcement database. The DAVID system is not accessible to the public. At the time of logging into the DAVID system, users are advised by a warning screen that the system is restricted to authorized personnel for appropriate law enforcement purposes. Usage of the system for personal purposes is specifically prohibited. An officer accessing the DAVID system must affirmatively acknowledge an understanding of the usage policy prior to initiating research. On the night of January 4, 2010, Officer Coppinger was logged into the DAVID system. The laptop computer is available to both officers in the patrol car. While on duty, the Respondent received a telephone call from her cousin, "Whizz," who told the Respondent of an alleged threat of arson against the Respondent's family by a man identified as "Terrance Bryant." The Respondent did not report the threat to Officer Coppinger or to any other law enforcement officer or agency. Instead, the Respondent immediately accessed the DAVID system in an effort to identify Terrance Bryant's residential address. The Respondent was sufficiently familiar with Terrance Bryant to use a variety of family names and spellings in the search. The Respondent also used information about Terrance Bryant's girlfriend, with whom the Respondent was also familiar, to the extent that the girlfriend had listed the Respondent as a reference on her own application for employment with the Sarasota Police Department. After extensive research in the DAVID system on January 4, 2010, the Respondent obtained the residential address for Terrance Bryant. The Respondent and Whizz met on January 5, 2010, at the Respondent's home to handle some household errands. The Petitioner asserts that the Respondent provided Terrance Bryant's residential address to Whizz at that time. The evidence is insufficient to clearly establish how Whizz obtained the address, but, by the time Whizz left the Respondent's home on that date, he possessed Terrance Bryant's residential address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending the Respondent's correctional certificate for two years. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2012.
The Issue The issue presented for decision herein is whether or not Respondent engaged in acts and/or conduct on July 27, 1983, which reduced his effectiveness as a law enforcement officer by committing a battery upon a police officer and failed to maintain good moral character as required pursuant to Section 943.1395(5), Florida Statutes, and Section 943.13(7), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including post-hearing documents submitted by Respondent, I hereby make the following relevant factual findings. By its Administrative Complaint filed December 19, 1984, as amended, Petitioner seeks to revoke the certification of Respondent, Lamont Taylor, who was certified by the Criminal Justice Standards and Training Commission on January 5, 1978. Respondent has been issued Certificate No. C-4405. On July 27, 1983, Respondent was stopped by Louis Churukian, a general patrolman employed by the Metro-Dade Police Force in excess of two years. Officer Churukian was employed on the 12-8 shift on July 27, 1983, and arrested Respondent for speeding, to wit, 50 miles per hour in a 35 miles per hour zone on Northwest 163 Street in the area of 14th Avenue, Miami Beach, Florida. In making the arrest, Respondent had to be apprehended with Officer Churukian using his emergency equipment (siren and emergency lights) for more than two blocks. When Officer Churukian was able to get Respondent to pull over, Respondent was told that he was observed speeding (50 miles per hour in a 35 miles per hour zone) whereupon Respondent was asked to tender his driver's license. Respondent was unable to produce his driver's license and he remained belligerent and hostile to Officer Churukian throughout the time that he was being arrested. Due to Respondent's hostile attitude, Officer Churukian requested the assistance of a backup officer who assisted in taking Respondent to a Metro-Dade police station for booking. Prior to placing Respondent under arrest, Officer Churukian asked Respondent if he had any weapons on his person whereupon Respondent advised that he had a gun in his waistband. Officer Churukian removed the weapon from Respondent's waistband which was a Smith and Wesson 357 revolver loaded with 6 rounds of "upper jacketed" ammunition. Respondent was transported to Station G where he was fingerprinted and booked for failure to produce a driver's license and later for battery upon a police officer. After Respondent was booked and his handcuffs were removed, he approached Officer Churukian without warning and struck him in the soft tissue area of his throat. Officer Churukian was administered emergency treatment for soreness and inflammation in the soft tissue area of his throat. Throughout the arrest and booking procedure, Officer Churukian did not engage in any act which might be regarded as provocative to prompt Respondent to strike him. In what has been described as a "sucker punch" by Officer Charlie Lee Daye, a correctional officer employed in a shakedown area of the Metro-Dade County Jail since approximately May 29, 1976, Respondent knocked Officer Churukian to the floor of the police station. Angel Nieves, a special response technician for Metro-Dade Police Force for a period in excess of thirteen years, was called upon to assist Officer Churukian to take Respondent to the jail. Special response technicians are always called upon when there are charges made against fellow police or correctional officers in Dade County. While Officer Churukian took Respondent to the jail, he was not abusive and Officer Nieves saw nothing that would prompt Respondent to strike Officer Churukian. Respondent failed to offer any mitigating testimony or other evidence to refute the allegations set forth in the Petitioner's charges filed herein. On April 5, 1994, respondent was accepted as a candidate for the State's Attorney's Deferred Prosecution Program and therefore he Respondent was not adjudicated guilty of the charges filed against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's Certificate Number C-4405 be revoked. RECOMMENDED this 8th of July 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of July 1985. COPIES FURNISHED: Robert Rand, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lamont Taylor 14404 NW 15 Drive Miami, Florida 33167 Darylp McLaughlin Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
