The Issue The issue in this case is whether policies of Respondent which are utilized in the course of investigations of Respondent’s law enforcement officers constitute rules subject to requirements of Chapter 120 Florida States; and, if so, whether such rules constitute an invalid exercise of delegated legislative authority contrary to requirements of Section 120.56 and Section 120.54, Florida Statutes (Supp. 1996).
Findings Of Fact Stipulated Facts The parties have jointly stipulated to the following factual statements set forth in paragraphs numbered 1-10. Petitioner Schluter has been employed by Respondent’s Division of the Florida Highway Patrol, serving the past eight years as an airplane pilot. A career service employee with permanent status, Schluter grieved his September 1996 dismissal from Respondent’s employment under collective bargaining agreement procedures existing between the State of Florida and the Florida Police Benevolent Association. A final decision has not yet been reached. In August 1995, Schluter was informed by Respondent that a complaint had been filed against him and that an investigation of the complaint was being conducted by Respondent. To facilitate Respondent’s investigation, the following conditions were imposed upon Schluter at the time he was placed on administrative duty: Schluter was not informed of the nature of the complaint filed against him, nor provided a description of the charges, nor provided a copy of the complaint. However, at the time of his administrative interview, Schluter was provided the written statements of all witnesses, including the person making the initial complaint. Schluter was removed from his duties as an airplane pilot and assigned to remain in his home during his duty hours each day. Schluter was specifically assigned his home as his duty station, was required to be available to contact on his home telephone, and was forbidden to leave his home without permission from his superiors. The change in work site was communicated to Schluter by memorandum dated August 23, 1995, assigning him to administrative duties at the Bradenton Station, and September 5, 1995, reassigning him to administrative duties at his residence. Schluter was denied the right to work off-duty police employment during his non- duty hours during the pendency of the investigation. He was not denied the right to work off-duty in non-police employment. The conditions on Schluter remained in place during the duration of the investigation which continued for approximately one year. Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station. Officers subject to this directive are permitted to leave their residences during duty hours only with the permission of their agency superiors. This policy has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Application of this policy to Petitioner Schluter was based upon the circumstances of his case and policy guidelines of the Florida Highway Patrol. Respondent has a policy of ordering its law enforcement officers who are under investigation, in certain circumstances, to have no contact with any person who may be a witness in the investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent rationalizes this policy as an effort to comply with Section 112.533, Florida Statutes. Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. This policy has not been adopted as a rule in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that police off-duty employment is not possible after Respondent has removed an officer’s gun, badge, police vehicle, and other indicia of authority. Law enforcement officers employed by Respondent have the right by virtue of a contract between the Florida Police Benevolent Association and the Florida Department of Management Services, acting as agent for the Governor of Florida to work in police off-duty employment. Article 16 of the current collective bargaining agreement provides for employment outside state government, including police employment. Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for this policy is that it is undertaken pursuant to Section 112.533, Florida Statutes, and FHP guidelines. To persons whom she interviewed, the primary investigator specifically identified Petitioner Schluter as the subject of the investigation. She identified him as the object of her investigations to employees of Respondent, to his private friends and associations, to other private persons, to his bank and to merchants in the community. Respondent contends Schluter was identified only where it was necessary to do so to effect the investigation and pursuant to investigative procedures and Section 112.533, Florida Statutes. Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that an officer under investigation may be revealed during the course of the investigation in order to conduct a witness interview and with confidentiality maintained in the context of the overall investigation. Other Facts The Florida Association of State Troopers, Inc., (FAST) is a non-profit Florida corporation, composed of Florida Highway Patrol active troopers, reserve and retired troopers, and auxiliary troopers. Approximately 1000 members of FAST are law enforcement officers currently employed by Respondent. The primary purposes of FAST are to provide representation of its members, to advance the interests of its members with the Florida Highway Patrol (FHP) and to improve treatment of its members employed by the FHP. An additional purpose of FAST is to promote the enforcement of laws protecting law enforcement officers. FAST provides legal representation to its members in matters directly relating to their employment with the FHP and to members for matters occurring off-duty which are related to their employment. Both FAST and Petitioner Schluter have standing to bring this proceeding With regard to Respondent’s policy of assigning those officers who are under investigation to indefinitely remain in their own residences as a duty station, the criteria for imposition of that policy is set forth in the FHP Policy Manual and specifically FHP Policy 8.01-9. While the term “home duty” is not specifically mentioned in FHP Policy 8.01-9, the same criteria are utilized in making a home duty assignment. These include circumstances involving physical or psychological fitness for duty evaluations of an employee; investigations of criminal allegations; investigations of policy violations by an employee for which dismissal is a penalty; instances where it has been determined that an employee would interfere with an investigation; instances where on-duty status of the employee would result in damage to property or be detrimental to the best interest of the state; and instances where there is possibility of injury to the employee or others if permitted to remain in an on-duty locale. Testimony offered by Respondent at the final hearing that promulgation of FHP Policy 8.01-9 as a rule is impracticable, is not credited in view of the existence of the policy and its enumerated criteria, its general applicability to a class of persons, and its effect upon substantial and personal interests when an individual is required to use his personal home as a work station i.e., Petitioner Schulter had no choice, other than insubordination, except to comply with the home assignment, use his home as his work station ,and thereby incur increased home operating expenses. As stipulated by the parties, Respondent has an policy, not promulgated in accordance with requirements of Section 120.54, Florida Statutes, of ordering law enforcement officers under investigation to have no contact with any potential witnesses. Petitioner Schluter received two directives or orders requiring his compliance with this policy. Respondent’s enforcement of this policy deprived Petitioner Schluter of most of his social contacts and affected his substantial interest since his social contacts were generally FHP troopers and other Respondent employees. Schluter was virtually cut-off from most social contacts as a result. Every citizen has a strong personal interest in personal and private associations. Respondent presented no creditable or persuasive evidence that it would be impractical to develop a rule governing whether a “no contact” order should issue to an employee, or that Respondent’s ability to grant a waiver from such a published rule would not mitigate any practicality problems that could be otherwise encountered. Similarly, Respondent’s Patrol Policy 5.10, also not promulgated in compliance with Section 120.54, Florida Statutes, documents Respondent’s off-duty police employment policy for members assigned to administrative leave in the course of an on-going investigation. The policy prohibits off-duty police employment for FHP members assigned to administrative leave in conjunction with an on-going investigation. As established by testimony at the final hearing, this policy encompasses the same criteria as that used in determining whether to place an employee on administrative or home duty. Schluter was substantially affected by Respondent’s off-duty police employment policy in that he was relieved from all law enforcement and aircraft duties with Respondent, inclusive of all indicia of his law enforcement authority (badge, gun and motor vehicle) with a resulting loss of approximately $1,000 per month in additional, private income. Respondent maintains that the off-duty police employment policy for members assigned to administrative leave ought not be promulgated as a formal administrative rule because of the ever-changing environment regarding off-duty employment and need for constant change in such policies. Contrary to Respondent’s position, the impracticability of promulgation of this policy is not credited in view of testimony by Respondent’s witness at hearing that prohibition of off-duty police employment for employees on administrative leave is not likely to change in the future. In the course of an investigative interview on November 10, 1995, Petitioner Schluter was denied access to lists of persons interviewed or written statements of persons interviewed, contrary to provisions of Section 112.532(1)(d), Florida Statutes. Respondent’s admitted policy of denying public access to records and information gathered during the course of an investigation of a law enforcement officer affects individual rights to access of such information and denies access to accused officers of an information avenue which may be utilized in preparation of a defense to charges Respondent may level against an officer. Additionally, Respondent’s blanket prohibition of access ignores those exceptions to confidentiality of such information set forth in Section 112.533(2), Florida Statutes; exceptions which permit access to review of certain investigation records. The investigation of Petitioner Schluter was initiated without a written complaint and his substantial interests were affected by Respondent’s no access policy. The impracticability of a rule addressing access, as well as providing prior notice to individuals like Schluter and others who may be similarly situated, of written investigation records within the scope of statutory limitations has not been demonstrated by Respondent. It is Respondent’s admittedly unpromulgated policy to identify the individual person who is the subject of the investigation to every witness interviewed in the course of an investigation. There is no statement of this practice in the FHP manual. The practice affects the substantial interest of individuals such as Petitioner Schluter by identifying him to his social and work contacts as a person under investigation. While maintaining that rule-making on the topic of when to identify the subject of an investigation in an interview in the course of an investigation is impractical, testimony by Respondent’s witness at final hearing establishes that investigations of the type involving Petitioner Schluter generally require that the investigation subject’s identity be disclosed to the interviewee. Consequently, testimony that promulgation of this policy is impractical is not credited. Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question. Any information or argument counsel for an employee desires to place on the record must be presented through the employee. Such a policy affects the substantial interest of officers who are the subject of investigation by impinging upon their right to counsel, statutorily codified in Section 112.532, Florida Statues, and impedes the effectiveness of counsel. The policy is applied in all such interviews. Impracticability of a rule addressing the role of counsel representing an employee in an administrative interview has not been creditably addressed by Respondent.
The Issue Whether Respondent, Kurn Tsuk Ho Lam (Respondent), failed to maintain good moral character required of law enforcement officers because he knowingly and willfully1 failed to report suspected child abuse and, if so, what is the appropriate penalty. 1 Pre-hearing stipulation, ¶1.
Findings Of Fact Respondent was certified as a Law Enforcement Officer in the State of Florida by the Commission on August 3, 2017, and issued Law Enforcement Certification #344454. He was employed at age 23 by the Panama City Police Department in the beginning of 2018, prior to the events that are the subject of this proceeding. As an employee of the Panama City Police Department, Respondent was required to review General Orders promulgated by his agency, to include General Order 410.00 which mandates that "all members of the Panama City Police Department shall report any known or suspected child abuse in accordance with F.S.S. 39.201." Respondent reviewed and was familiar with4 General Order 410.00, which defines child abuse as "any willful act or threatened act that results in any physical, mental, or sexual injury or harm." In February 2018, T.M., a seven-year-old minor, lived in a home with her guardians, , and their child D.G., who was a 17-year-old minor at the time. T.M. is 5. . 4 On January 25, 2018, Respondent electronically signed that he reviewed Panama City Police Department's General Order 410.00. At all pertinent times, Respondent had the understanding that T.M. was living with because she had been sexually molested by her father when she was three-years old, and that her natural father and mother were in prison. According to investigative reports and interviews, on or about Thursday night, February 8, 2018, while were at the hospital visiting a relative, D.G. licked his finger and put it in T.M.’s vagina. The reports further inform that, upon their return home, the next morning, February 9, 2018, T.M. told what D.G. purportedly did. Two days later, Sunday, February 11, 2018, called Respondent and advised him that, based on conversations that had with D.G. and his wife, T.M. had said that she had a dream that someone was touching her “down there.” 9. told Respondent that, according to D.G., D.G. was up late on the night of the incident when he heard T.M. scream, and that when D.G. went to check on her, she associated the person who she was dreaming about with D.G. During the telephone conversation, further advised Respondent that T.M. was seeing a counselor because she had recurrent night terrors as a result of being molested by her natural father years before. also told Respondent during that phone call that had stated that D.G. might need to be arrested. At the time, Respondent believed that the incident with T.M. had occurred the night before he received the February 11th phone call from , i.e., on February 10, 2018. At the hearing, Respondent credibly explained his perspective derived from his February 11, 2018, telephone conversation with : So following that conversation, I asked if he wanted to report this, which he said no, and he seemed uncertain if anything did happen, so I had no reasonable suspicion to actually [sic] upon, because he’s telling me something he was told by someone, who he’s not even sure about what to do, and I advised him, because she already seeks counseling for this, you know, night terrors, that that’s what he should do, take it to a medical professional to determine if anything did happen. Respondent believed that, the next day, Monday, February 12, 2018, took T.M. to see her counselor, and that the incident had been reported. That understanding is consistent with Petitioner’s timeline, which states that the Department of Children and Families was notified about the incident involving T.M. on Tuesday, February 13, 2018. On Tuesday, February 13, 2018, D.G. moved because , that the counselor advised that D.G. could not live in the same house with T.M. during the investigation. D.G. spent the nights of Tuesday, February 13, and Wednesday, February 14, 2018, with and their 10-month-old daughter. Respondent explained during his sworn interview at the Panama City Police Department on Thursday, February 15, 2018: . . . . On Thursday, February 15, 2018, while both were at home, D.G. asked and D.G. to take him to the police station. Apparently, D.G. had been contacted by the police and was asked to come to the police station. called his wife, who was on the way back from a job interview in the couple’s only car, and told her they needed to take D.G. to the police station. After wife arrived home, , D.G., and wife got into the car, with wife driving, and headed to the police station. On the way, wife talked to and on the phone and became emotional about taking to the police station. At some point, she stopped the car and switched places with Respondent, and Respondent drove them the rest of the way to the Panama City Police Department. That same day, February 15, 2018, the Panama City Police conducted sworn interviews with wife’s sister, and regarding the allegations and reporting of allegations against D.G.5 were arrested for not properly reporting T.M.'s accusation.6 D.G. was arrested for inappropriately touching T.M.7 The next day, February 16, 2018, law enforcement officers from the Panama City Police Department and Bay County Sheriff’s Department came to Respondent’s house and had him sign papers stating that he was being 5 There may have been other interviews in connection with the case that day, but these were the only interviews that were marked and offered as exhibits in this case. 6 On those charges, both ultimately pled no contest to a misdemeanor charge of contributing to the delinquency of a minor, for which each was adjudicated guilty, received 12 months’ probation, was required to pay fines and fees, and had to perform 50 hours of community service. 7 D.G. pled nolo contendere as a minor to a charge of felony battery under section 784.041(1), and on June 25, 2019, an Order of Delinquency Disposition was entered withholding adjudication of delinquency and imposing juvenile probation on D.G., including, inter alia, 75 hours of community service. terminated from his job as a police officer. They took all of Respondent’s police equipment and arrested him for failure to report child abuse. After his arrest for failure to report child abuse, Respondent spent one day in jail. Respondent was offered, and he accepted, a pretrial intervention consisting of 12 months of probation and 100 hours of community service. Respondent’s probation was ended early and the charge against him for failure to report child abuse was nolle prossed. The four letters submitted by Respondent are all positive letters reflecting his honesty and good moral character. The Department’s counsel stipulated that the letters could be considered as favorable mitigating factors for Respondent. The witness called by Petitioner suggested that Respondent may have been withholding information during his police interview on February 15, 2018. However, upon review of the transcript of that interview, as well as considering Respondent’s testimony and demeanor during the final hearing in this case, it is found that his testimonies regarding this matter were honest and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of April, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 2nd day of April, 2020. COPIES FURNISHED: Ray Anthony Shackelford, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed) Kurn Tsuk Ho Lam (Address of record-eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 14, 1988, as a law enforcement officer, Certification Number 55408, and at all times relevant, the certification was active. Between November of 1993 and March of 1994, the Respondent was employed as a police officer with the Orlando Police Department. During this time, the Respondent was assigned to the Southeast Patrol Division during the midnight shift. In August of 1993, Yvette Jolene Bevivino (Bevivino) became acquainted with the Respondent. At the time Bevivino was employed at Shoney's Restaurant on the 1700 block of South Semoran in the City of Orlando as a Dining Room Supervisor. The Respondent would stop by at the restaurant and talk to Bevivino after she got off at work. The Respondent would usually stop by sometime between midnight to 2:00 a.m. to see her. Usually when the Respondent came to visit he was in uniform. There were, however, times when Respondent told her that he was working undercover. There were other instances that while Respondent was talking to her, he received a radio dispatch, and he would have to leave. Between November of 1993 and March of 1994, Bevivino and the Respondent would leave the restaurant area, go to a secluded location, and engage in sexual conduct. Bevivino and the Respondent engaged in sexual intercourse on two or three occasions. Bevivino performed oral copulation on the Respondent on one occasion, and she observed the Respondent masturbate on one occasion. Usually the liaisons were initiated by the Respondent stopping by the restaurant when she was getting off work. Bevivino would then follow the Respondent to a wooded area behind Denny's on State Road 436 by the airport. The Respondent was dressed in his uniform on each occasion and was driving an Orlando Police Department vehicle. At least some, if not all, of the sexual encounters were interrupted by the Respondent receiving a radio dispatch. If that occurred, the Respondent and Bevivino would complete the act and the Respondent would leave. The sexual encounters with Bevivino would last from 15 minutes to one hour and 15 minutes. On or about July 25, 1994, Sgt. Paul Rooney was employed by the Orlando Police Department and assigned to the Internal Affairs Division. The Respondent stated to Sgt. Rooney on July 25, 1994, and again on August 8, 1994, that he had been having sexual relations with a female while he was on duty and in uniform. On August 8, 1994, Sgt. Rooney formally interviewed the Respondent, and the Respondent was placed under oath prior to his interview. It was the policy of the Orlando Police Department that officers are available at all times they are on duty, even for meal breaks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993), and that Respondent's certification be REVOKED. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. Paul D. Johnston, General Counsel Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Andrew J. Sanderson 946 Malden Court Longwood, Florida 32750 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Thomas E. Gibbons, was certified by the Criminal Justice Standards and Training Commission on October 19, 1979, and was issued certificate number 99-2054. At the times pertinent hereto, Respondent was a certified law enforcement officer employed by the City of Fort Lauderdale Police Department. At the times pertinent hereto, Respondent, Officer Robert Grant, Officer William A. Drossman, and Officer Phillip Seguin were police officers employed by the City of Fort Lauderdale Police Department and were assigned to the canine unit (K-9 Unit). On December 23, 1988, several City of Fort Lauderdale police officers became involved in a vehicle chase of a burglary suspect. The sequence of events described below occurred during the early morning hours before daylight, and resulted in the arrest of Michael Jerome Jones. The Respondent, Officer Grant, Officer Drossman, Officer Seguin, and several other officers heard the call on the radio and responded to assist in apprehending the suspect. Law enforcement officers from other jurisdictions became involved in the chase of the suspect. After being involved in the chase for a short while, the suspect abandoned his vehicle and sought to escape on foot. Among those involved in the foot chase of the suspect were the Respondent, Officer Grant, Officer Drossman, and Officer Seguin. Each of these K-9 officers utilized his dog in the chase. The chase of the suspect occurred in the vicinity of Oswald Park and the subsequent apprehension occurred in a field adjacent to the park on the north. This area is out of the geographical jurisdiction of the Fort Lauderdale Police Department. Consequently, these K-9 officers had not worked in this area before. Between the park area and the area of the apprehension is a cyclone wire fence approximately five feet in height which was, at the time of the incident, covered with vines. Oswald Park is a lighted, fairly open area. The area of the apprehension is a field that was dark and overgrown with vegetation. Officer Grant exited his vehicle on Northwest 27th Street, Fort Lauderdale, in pursuit of the suspect. Officer Grant first considered releasing his dog so that the dog could make a running hit on the suspect. Because another officer came between Officer Grant's location and the direction the suspect was heading, Officer Grant could not release his dog. The officers involved in the chase surrounded the area in which the suspect had run. Officer Grant and his dog were stationed on the north side of the field. Several officers, including Officer Seguin, were in Oswald Park. Officer Grant believed Respondent to be west of the suspect. Officer Drossman's dog tracked the suspect into a fenced yard. Officer Drossman located the suspect hiding on top of a two-story barn and told the suspect he was under arrest. Instead of obeying, the suspect jumped off the south side of the roof and continued to run toward Officer Grant's position. Officer Drossman and another officer advised Officer Grant by radio that the suspect was heading in his direction. Officer Grant, who was on the northeast corner of the field, observed the suspect jump over the fence into the field. Officer Grant had his dog on a leash that was approximately fifteen feet in length. Officer Grant's dog tracked the suspect to the southeast corner of the field and located the suspect while he was lying face down on a sand hill. At no point after the point of apprehension did the suspect offer any resistance to any law enforcement officer. 1/ The conflicts in the evidence are resolved by finding that Petitioner established the following facts by clear and convincing evidence. Officer Grant's dog bit Mr. Jones at least once on the shoulder area of his outstretched right arm and held on to the shoulder, causing Mr. Jones to cry out in pain. Officer Grant placed Mr. Jones under arrest and handcuffed Mr. Jones using metal handcuffs with his hands in front. No other officer assisted Officer Grant in handcuffing Mr. Jones. Respondent was in Oswald Park when he heard Officer Grant's dog make contact with Mr. Jones. Respondent believed that only one officer was at the arrest scene and decided to assist that officer. After he tied his dog to the fence separating Oswald Park and the arrest site, Respondent leaped over the fence, which was approximately five feet in height, and proceeded to the arrest area. Respondent dropped his flashlight 2/ while crossing the fence and located the arrest scene from the noises being made by Mr. Jones, Officer Grant, and Officer Grant's dog. Respondent ran from the southern area of the field over to where Officer Grant was standing with Mr. Jones. After Mr. Jones was handcuffed, Officer Grant took his dog off and pulled Mr. Jones to his feet by pulling on the handcuffs. Officer Grant saw Officer Drossman and Officer Drossman's dog standing behind him while Officer Grant was lifting Mr. Jones off the ground. Respondent arrived on the scene of the arrest just as Officer Grant was pulling Mr. Jones to his feet. Respondent grabbed Mr. Jones and pulled him away from Officer Grant. Respondent was making comments about how he had hurt his hand and got dirty trying to find Mr. Jones and then started striking Mr. Jones while Mr. Jones was handcuffed and not resisting. Respondent struck Mr. Jones with his fists in the upper torso area, causing him to fall to the ground, and kicked him several times. Respondent helped Mr. Jones to his feet and subsequently struck him again, causing him to fall to the ground. Officer Seguin, who was stationed across the fence in Oswald Park, heard the suspect screaming and heard sounds like someone was being hit. Officer Seguin also testified that he saw the light from flashlights in the area of the arrest. Mr. Jones never slipped a cuff during this incident, nor did he ever try to fight Respondent. After Respondent stopped hitting Mr. Jones, Respondent walked south of the field with Mr. Jones to the fence. At the fence, Respondent prodded Mr. Jones to climb up on the fence by kicking him on the back of his legs. Once Mr. Jones was on the fence, Respondent pushed him so that Mr. Jones fell to the other side of the fence and into Oswald Park where Officer Seguin and Officer Salisbury were waiting. While the proof was sufficient to demonstrate that Respondent committed a battery upon Mr. Jones immediately following his arrest, it was insufficient to demonstrate that the manner in which Respondent caused Mr. Jones to cross the fence entailed the use of excessive force or that it constituted a battery on the person of Mr. Jones. Officers Salisbury and Seguin then took custody of Mr. Jones. 3/ Mr. Jones was handcuffed to the front at the time he came into the custody of Officer Seguin and Officer Salisbury. Officer Salisbury re-cuffed Mr. Jones with his hands behind his back and placed Mr. Jones in his police car. Officer Salisbury later returned Officer Grant's handcuffs to him. Mr. Jones was transported back where he had abandoned his vehicle and the foot chase began. Respondent and most of the other officers involved in the chase gathered at this location. Sgt. Runnerstrom, who was the supervisor for the K-9 unit officers, was also present. The officers present thereafter engaged in a bull session wherein Respondent bragged about having made Mr. Jones, whom he called an "ass-hole", a lesson for making him sweat, jump the fence, and get dirty. On January 12, 1989, some unknown party wrote a letter to Captain Thomas of the City of Fort Lauderdale Internal Affairs Department which in detail complained of Respondent's behavior on December 23, 1988. This letter was written from the perspective of someone who was at the scene of the arrest and charged Respondent with having used excessive force against Mr. Jones. The letter was delivered to an area of the police department that has restricted access. This letter was assigned to Internal Affairs Sgt. Richard Herbert for investigation. After Officer Grant, Officer Drossman, and Officer Seguin gave statements to Sgt. Herbert, each was separately approached by Respondent. Respondent first learned of the Internal Affairs investigation through another officer on March 9, 1989. Officer Grant testified that he could not remember exactly what Respondent had said to him, but that he construed the conversation as a request to modify the statement that Officer Grant had given to internal affairs by saying that it had been too dark for him to see whether Mr. Jones had slipped a cuff. Officer Grant also testified that Respondent never asked him to lie and that the conversation could have been interpreted differently. Officer Drossman testified that Respondent asked him to say that it was too dark for him to have seen what had happened. Officer Drossman also testified that Respondent did not ask him to lie. Officer Seguin testified that he had several conversations with Respondent about the matter, but that Respondent did not try to tell him what to say. Petitioner failed to establish by clear and convincing evidence that Petitioner asked Officer Grant or Officer Drossman to lie about the incident. While discussing the manner in which Mr. Jones came over the chain link fence, Respondent stated to Officer Seguin that Respondent would have to "out and out lie about how the guy came over the fence." On March 21, 1989, Respondent gave a sworn statement to Sergeant Herbert which was consistent with the version of the events of December 23, 1988, to which Respondent testified at formal hearing. This sworn statement did not accurately describe the events that occurred at the scene of the arrest on December 23, 1988. At the conclusion of the Internal Affairs investigation, Respondent's employment with the City of Fort Lauderdale Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent committed battery against the person of Michael Jerome Jones on December 23, 1988, and that he subsequently gave a false statement to internal affairs about the incident. It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of one year. DONE AND ORDERED this 2nd day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1992.
Findings Of Fact In November of 1960 the Petitioner, Frankie L. Mills, became employed by the Florida Highway Patrol, and he was a member of the Florida Highway Patrol Pension System (Chapter 321, Florida Statutes). On approximately December 1, 1970, the Petitioner transferred from the Florida Highway Patrol Pension System, and he became a member of the Florida Retirement System (Chapter 121, Florida Statutes). In June of 1976, the Petitioner resigned from the Florida Highway Patrol to run for Sheriff of Okaloosa County. He was elected, and began his position as Sheriff in January of 1977. In the election of 1980 the Petitioner was not re- elected as Sheriff of Okaloosa County. As a result, his term of office as Sheriff ended on January 6, 1981, and the Petitioner vacated the office of Sheriff of Okaloosa County. The Petitioner did not resign from his position as Sheriff of Okaloosa County. His termination from the office of Sheriff was occasioned by the expiration of his elected term of office as of January 6, 1981.. During the time the Petitioner served as Sheriff of Okaloosa County, until January 6, 1981, he was a special risk member of the Florida Retirement System (Chapter 121, Florida Statutes). In August of 1981, the Petitioner became employed as a deputy sheriff of Gulf County. This employment qualified him as a special risk member of the Florida Retirement System (Chapter 121, Florida Statutes). The Petitioner has been employed as a deputy sheriff in Gulf County since August, 1981, and he is so employed at present. Between January 6, 1981, and at least August 11 981, the Petitioner was not employed by an "employer" as this term is defined in Section 121.021(10), Florida Statutes, and during this time he was absent from the payroll of any such "employer." Between January 6, 1981, and August of 1981, the Petitioner was not a "state law enforcement officer" as this term is used in Section 121.021(38), Florida Statutes, and Rules 22B- 2.002(5)(e) and (g), Florida Administrative Code. Between January 6, 1981, and August of 1981, the Petitioner had a break in his continuous service under the provisions of Chapter 121, Florida Statutes, including Section 121.021.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter its Final Order finding that the Petitioner, Frankie L. Mills, had a break in his continuous service in the special risk category of the Florida Retirement System during the period of time he was not employed as a law enforcement officer between January and August, 1981. THIS Recommended Order entered on this 26th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of November, 1986. COPIES FURNISHED: Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32301 Robert Scott Cox, Eq. P. O. Box 1876 Tallahassee, FL 32302-1876 Burton M. Michaels, Esq. 2639 North Monroe street Suite 207, Building C Tallahassee, FL 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner's proposed findings are not in consecutively numbered paragraphs, but the unnumbered paragraphs will be considered to be consecutively numbered. 1.-3. Accepted. 4. Rejected, as not a proposed factual finding, but an argument of law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted.
The Issue Whether petitioner's application for a Class "G" license, statewide gun permit, should be granted.
Findings Of Fact The parties stipulated that petitioner's application for a Class G" statewide gun permit was properly filed with the Department of State, Division of Licensing. The application was not entered into evidence; however, the parties stipulated that the only bases for the denial of the license were those stated in the letter of February 16, 1987. On April 7, 1969, petitioner was adjudicated guilty of the offenses of breaking and entering an automobile and petty larceny. Petitioner was placed on probation for a period of five years. On April 16, 1987, petitioner entered a plea of nolo contendere to the offense of battery and was placed on probation for a period of six months. Respondent testified that between 1969 and 1974, while he was on probation, he tried to get his civil rights restored but that he has never been able to determine the status of his civil rights. Petitioner presented no evidence establishing that his civil rights had been restored. No evidence was presented at this hearing regarding the factual circumstances surrounding petitioner's arrest and conviction for breaking and entering an automobile. In his proposed findings of fact, petitioner describes facts from a document he describes as "listed as Item 4, Case Number 85-67 in a hearing held in 1985 on file with the Division of Administrative Hearings." However, no evidence regarding the breaking and entering conviction was submitted at this hearing, and a document submitted during the course of some prior hearing cannot be used to establish factual findings in this proceeding. Petitioner is the owner of Sun Coast Securities, Inc. His company provides security for major events needing crowd control, and a primary employer is the Florida State Fairgrounds. Petitioner has a Class "D" license and an agency license. On the night of October 31, 1986, petitioner was hired by the owner of Yesterday's Lounge to provide security at a Halloween party. Samuel Valez was one of the customers at the Halloween party. The Halloween party was supposed to start at about 9:00 p.m. However, Mr. Valez and a few of his friends got to the bar about 7:00 or 7:30 p.m. Mr. Valez had several drinks during the course of the evening. At some time after 10:00 p.m., Mr. Valez got into a dispute with a bartender. Petitioner thought he saw Mr. Valez take a swing at the bartender. However, Ms. Spalding, who was sitting at the bar, did not see any incident with the bartender. Ms. Ryan observed the dispute with the bartender and stated that Mr. Valez did not hit anyone but was having a disagreement over the service of the drinks. In any event, Mr. Valez was asked to leave the premises by the owner. Mr. Valez was intoxicated. Petitioner and the owner escorted Mr. Valez outside. After they got outside, petitioner and Mr. Valez exchanged a few words. Petitioner pushed Mr. Valez and then hit him in the face. Ms. Imschweiler, Ms. Spalding, and Ms. Ryan all observed the incident. None of the three saw Valez attempt to hit anyone, either petitioner or the owner of the lounge. Ms. Ryan testified that petitioner hit Valez more than once. After Mr. Valez had fallen, petitioner grabbed Valez by his ankle and dragged him across the parking lot ground. Mr. Valez kept stating he didn't want to fight, but every time he tried to get up petitioner pushed him to the ground again. Mr. Valez was bleeding. Ms. Ryan described Valez as having been beaten to a pulp. Petitioner contended that he was merely protecting the owner, that Mr. Valez had taken a swing at the owner, and that petitioner grabbed Valez' arm to prevent the owner from being hit. He also testified that Mr. Valez tried to hit him, and he hit Mr. Valez in self-defense. However, none of the witnesses saw Mr. Valez swing at anyone. The witnesses characterized petitioner's attack on Mr. Valez as unprovoked. Petitioner is 5'10" and weighs 300 pounds. Petitioner does power lifting and holds state and national records. He can squat lift 830 pounds. Mr. Valez is approximately 5'7" tall and weighs about 140 pounds. As a result of the altercation with Mr. Valez, petitioner was arrested and charged with aggravated battery. Petitioner ultimately pleaded nolo contendere to simple battery. The evidence presented at the hearing established that petitioner's attack on Mr. Valez was not in self-defense or in the defense of his client.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "G" license. DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of August, 1988.
