The Issue Whether or not Charles D. Reynolds, on January 7th, 1976, was arrested and charged with DWI, Aggravated Assault, and Resisting Arrest without Violence; the charge of DWI was reduced to driving with an unauthorized blood alcohol level; Charles D. Reynolds plead guilty, was adjudicated guilty and paid a fine of $200 plus court costs; the aggravated assault charge was nol prossed; he plead guilty and was adjudicated guilty of Resisting Arrest without Violence and paid a fine of $250 plus court costs, his license was revoked, and he was sentenced to DWI School; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Charles D. Reynolds, on December 25th, 1976, was arrested and charged with DWI, and resisting arrest with violence; he plead guilty to the lesser including Offense of Assault on a Law Officer, was put on one year's probation, sentenced to spend weekends in Jail for a period of three months beginning June 11th, 1977; he was allowed to vacate the guilty plea and plead nolo contendere to the charge of Assault on a Law Enforcement Officer with the same conditions as the guilty plea; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.
Findings Of Fact The Respondent, Charles D. Reynolds, is presently the holder of Florida Teacher's Certificate Number 316529, Graduate Rank III and is employed in the public schools of Duval County, Florida. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated May 17th, 1977. Upon examination of the recommendation, the Commissioner of Education found probable cause for filing a petition for the suspension of the Respondent's Florida Teacher's Certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, F.A.C. This determination was made on May 17th, 1977. On May 23rd, 1977, a petition for the suspension of the Respondent's Florida Teacher's Certificate was filed. The Respondent has filed his answer to the petition and has opposed the entry of an order of suspension. The case has been forwarded to the Division of Administrative Hearings for consideration by correspondence from the Petitioner dated July 14th, 1977. On January 7th, 1976, Respondent, Charles D. Reynolds a/k/a Chuck Daniel Reynolds was involved in an automobile accident in the parking lot of his residence at the Arrowhead Apartments located in Jacksonville, Florida. Officers of the Jacksonville Sheriff's Office investigated the case and in the course of the investigation asked to enter Respondent's apartment to obtain his driver's license. Reynolds was opposed to them entering his apartment, but they did go in. Reynolds went to the bedroom and obtained the license and came back into the living room area. At that point he became angry with the officers and took a swing in the general direction of a Sergeant Branch. The other officers subdued Reynolds and handcuffed him. He was subsequently taken to the hospital for treatment of wounds received in the scuffle. In addition to the events described, Reynolds also made verbal threats against the witnesses to the accident, to the effect that he would get even with them. During the course of this entire exchange, Reynolds appeared intoxicated as evidenced in slurred speech, erratic actions, excitability and a strong odor of the substance alcohol. He continued to be belligerent and kicked the side of the police car while being transported. It should be indicated that the Respondent did not carry out any of the verbal threats that he made. As a result of the incident, the Respondent was charged with DWI, aggravated assault, and resisting arrest without violence. The charge of DWI was reduced to driving with an unauthorized blood alcohol level and a guilty plea was entered for which he was fined in the amount of $200.00. The aggravated assault charge was nol prossed. The further provision of his sentence was that he attend the DWI school. The particulars of this case may be found in the Petitioner's composite exhibit 1 admitted into evidence, which describes the pleas and the judgment and sentence. The Respondent was fined in the amount of $250.00 for his plea of guilty to resisting arrest without violence. The second incident for which Respondent is charged in the Petition for Suspension, pertains to events on December 25th, 1976. On that date officers of the Jacksonville Sheriff's Office were traveling east on 103rd Street, in Jacksonville, Florida. Reynolds was going west, driving with his bright lights on and straying into the oncoming lane in which the officers were driving. The time was approximately 1:30-2:00 a.m. The officers turned around and pursued Reynolds, who at one point in the pursuit pulled off the road to avoid the officers. The officers finally caught Reynolds on Interstate 295 in Duval County, Florida. After making the stop, they removed Reynolds from the car and noted that he had a strong odor of alcohol about his person, and was staggering around. One officer administered so-called field sobriety tests , specifically the finger to nose and balance test. In the finger to nose test the individual tries to place an index finger on his nose while standing in a certain posture. Reynolds was unable to do this and was also unable to stand on one foot in attempting the balance test. The officers felt that Reynolds was driving while under the influence of alcohol; however, being Christmas Day they intended to give Reynolds the opportunity to have someone come and pick him up and drive his car home, and waive charges. When this was explained to Reynolds, Reynolds replied that he wanted to get back in his car, for purposes of driving away. The officers prohibited him from getting in the car, at which point a struggle ensued between the officers and Reynolds for a period of minutes. Most of the struggle was in the traffic lanes of Interstate 295. In the end, Reynolds was charged with DWI, a couple of traffic violations and resisting arrest with violence. After the struggle Reynolds indicated that the officers were going to be sorry for, "screwing with me." He was taken to the Duval County, Florida Jail and booked for the offenses and given a breathalizer examination which showed his reading to be .27 percent blood alcohol level. This reading nay be found in Petitioner's Exhibit 3 admitted into evidence. He entered a plea of guilty to the lesser included offense under resisting arrest with violence, to wit assault on a law enforcement officer. The Court withheld the adjudication of guilt and placed the Respondent on probation for a period of one year on the condition that he spend weekends in jail for a period of three (3) months, beginning on June 11th, 1977, and pay $10.00 per month for cost of supervision. This plea was subsequently withdrawn and the Court allowed a plea of nolo contendere to be entered in lieu of the guilty plea. The Court also allowed a motion to mitigate the sentence, which motion was filed prior to the imposition of the petition for suspension made by the Petitioner in this cause. The Court's Order Granting the Motion to Mitigate was entered subsequent to the Petition for Suspension made by the Petitioner. The probation terms were modified by memorandum of June 9th, 1977, from the Court, deleting the provision to spend weekends in jail. Subsequently, the Respondent was required to spend time working in a program known as the Jacksonville Probation and Restitution Center, working with young offenders. (The Director of that program testified in the hearing and indicated that Mr. Reynolds did an admirable job of assisting in the program.) For the violations alleged on January 6th, 1976 and December 25th, 1976, the Petitioner has charged Respondent with violations of Section 231.09 and .28, F.S. The two incidents will be discussed chronologically in considering whether the Petitioner has proven the violations or not. The first factual incident discussed pertains to the events of January 7th, 1976. In reviewing the events that led to the arrest and charges previously discussed and the subsequent disposition of those charges in terms of a possible substitute violation of Section 231.09, F.S., the only provision of that section which would seen to have any application would be Section 231.09(2) F.S. No other sub-paragraphs of Section 231.09, F.S. seem to have application under the evidential facts established. The subsection that does have application, i.e., Section 231.09(2), F.S. reads as follows: "EXAMPLES FOR PUPILS -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." This provision of the chapter has been considered in the case of Meltzer vs. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), in that opinion the Court held Section 231.09(2), F.S., to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc, reported at 553 F.2d 1008, The United States Fifth Circuit Court of Appeals, granted rehearing with the right for oral agreement and the opportunity to submit supplemental briefs, with the date of the oral agreement to be announced in the future. The rehearing has not been held at the time of this recommended order, to the knowledge of the undersigned. Consequently, the undersigned will report whether the evidential facts as demonstrated established a violation under the language of Section 231.09(2), F.S., with a caveat that this section may not withstand the final order of the Court in Meltzer, supra. Should Section 231.09(2), F.S. be upheld, the acts of being arrested and pleading guilty to driving with an unlawful blood alcohol level and resisting or opposing a police officer without violence constitute violations of Section 231.09(2), F.S., both in terms of the entry of the plea in those two counts and in terms of the underlying evidential facts which led to the plea of guilty. These facts establish that the Respondent failed to labor faithfully and honestly for the advancement of the pupils in their department and morals, in accordance with Section 231.09(2), F.S., assuming this latter section of the law to be constitutional. Again, the evidential facts spoken of are those established in the events reported in the hearing pertaining to the incident of January 7th, 1976, in which Respondent was driving with an unlawful blood alcohol level and resisted the police without violence. In connection with the events of January 7th, 1976, there is a further allegation of a violation of Section 231.28, F.S. In pertinent part, Section 231.28(1), F.S., states that the license can be suspended in accordance with the following language: * * * "(1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic vio- lation , or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of the law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the re- gulations of the State Board of Education or the school board in the district in which he is employed." In reviewing the language of that section in comparison to the facts established in the events of January 7th, 1976, it is established that Respondent is guilty of a violation of that section because he has plead guilty to driving with an unauthorized blood alcohol level and resisting arrest without violence, which are misdemeanors or other criminal charges, other than minor traffic violations. This activity was also an act involving moral turpitude. No other violations of this section were shown as a result of the matters of January 7th, 1976. Turning to a consideration of the factual matters established in this hearing as it pertains to December 25th, 1976, and in view of the discussion of Section 231.09(2), F.S., pertaining to January 7th, 1976, a violation has been shown. The events of December 25th, 1976, are likewise subject to the caveat pertaining to the case of Meltzer, supra. The events of the arrest and subsequent pleas in Court after the factual events of December 25th, 1976, have shown the Respondent has failed to labor faithfully and honestly to the advancement of pupils and their deportment and morals, by his condition while driving and by his resistance to the authorities who were trying to enforce the laws of the State of Florida. No other violations of Section 231.09, F.S., were shown for the December 25th, 1976 incident. The events of December 25th, 1976, show a violation of Section 231.28(1), F.S., in that the act of the Respondent's driving and resistance to the authorities who were enforcing the laws of the State of Florida were acts involving moral turpitude. Also by the entry of the plea of nolo contendere which the Court accepted in lieu of the guilty plea, the Respondent has been convicted of a misdemeanor other than a minor traffic violation. No other violations of Section 231.28, F.S. were shown for the events of December 25th, 1976. By the guilty plea entered to the offenses of driving with an unlawful blood alcohol level and resistance without violence in the charges of January 7th, 1976, and the nolo contendere plea to the offense of assault on a law enforcement for the events of December 25th, 1976, the Petitioner has made a prima facie proof of grounds for revocation of the Respondent's teaching certificate, as set forth in Section 231.28(3), F.S. These prima facie grounds have not been refuted by the Respondent.
Recommendation In the course of the hearing, certain witnesses testified as to the Respondent's good character and teaching proficiency. These witnesses were various members of the community and members of the staff of the school in which the Respondent teaches and pupils of the Respondent. Although these witnesses were not aware of the events involved in the incidents of January 7th, 1976, and December 25th, 1976, they were nonetheless impressed with Respondent's abilities as a teacher. In considering their testimony and the testimony offered which established the alleged violations, it is
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
The Issue The issue in this case is whether the Petitioner's application for a Class "D" Security Officer License should be granted or denied.
Findings Of Fact On or about January 4, 1994, the Petitioner filed an application for a Class "D" Security Officer License pursuant to Chapter 493, Florida Statutes. On April 20, 1994, the Respondent sent a letter to the Petitioner advising him of its intention to deny his application. The sole stated ground for denial was described as "[f]ailure to qualify under Section 493.6118(1)(j). You committed an act of violence or used force on another person which was not for the lawful protection of yourself or another." The denial letter also made specific reference to the date of February 21, 1993, and specifically referred to criminal charges allegedly brought against the Petitioner on that date for battery and aggravated battery. With regard to the Respondent's basis for denial, the proof demonstrates that during the early afternoon of February 21, 1993, the Petitioner became involved in an argument with Jessica Favata, an adult female with whom he was acquainted. The intensity of the argument escalated and at one point the Petitioner physically pushed Ms. Favata. At that point a male friend of Ms. Favata, one Bradley Watson, injected himself into the argument. As the intensity of the argument between the Petitioner and Mr. Watson continued to increase, the Petitioner retrieved an aluminum baseball bat from his motor vehicle and began swinging the bat in the general direction of Mr. Watson. During the course of one of the swings of the bat, the Petitioner struck Ms. Favata on the hand with the bat. As a result of being struck by the bat, Ms. Favata's hand was visibly injured. During the course of the events described in the preceding paragraph neither Ms. Favata nor Mr. Watson were armed with any type of weapon. Similarly, neither Ms. Favata nor Mr. Watson were causing or attempting to cause physical harm to the Petitioner.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application for a Class "D" Security Officer License. DONE AND ENTERED this 31st day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994.
The Issue Whether or not the Respondent, Anita J. Shear, R.N., is entitled to have her terminated license No. 27650-2 reinstated, in view of the alleged allegations that the Respondent has been found guilty of the conviction of a felony in the course of the State of Florida. (See Section 464.151(1)(b) and Section 464.21(1) Florida Statutes.)
Findings Of Fact This cause comes on for consideration based upon the Administrative Complaint presented by the Petitioner, Florida State Board of Nursing, against the Respondent, Anita J. Shear, R.N. The case is presented as Docket No. FSBN 78-70. The Administrative Complaint seeks to deny the re-registration of the terminated license of Anita J. Shear, who held license No. 27650-2 (terminated). The alleged grounds for the denial of the re-registration are based upon the alleged plea of guilty to the felony charges of unlawfully obtaining services, goods, wares or other things of value by means of a worthless check or draft in the amount of $187.00 in a case in the Circuit Court in and for Dade County, Florida, Case No. 77-2285. The allegation is that the Respondent entered the plea on or about March 14, 1978, and was adjudicated guilty of the felony by the Court and sentenced to serve a term of one year in jail upon certain terms and conditions. There is an additional ground stated in the Administrative Complaint for denying the re-registration, which is to the effect that the Respondent on or about March 14, 1978, entered pleas of guilty to the felony charges of uttering a forged instrument (three counts); grand larceny (three counts) and intentionally receiving, retaining, disposing or aiding in the concealment of stolen property, well knowing the same to be stolen (three counts). This series of pleas were allegedly presented in the Circuit Court in and for Dade County, Florida, in Case No. 77-2304, for which the Respondent was allegedly adjudicated guilty of all those aforementioned felonies in Case No. 77-2304. At a time prior to March 31, 1978, the Respondent, Anita J. Shear, R.N., was a holder of license No. 27650-2, held with the Florida State Board of Nursing. That license was to practice as a Registered Nurse in the State of Florida. The Respondent, prior to March 31, 1978, had failed to timely renew her license and had terminated according to the terms and conditions of Section 404.151(1)(b), Florida Statutes. The timely renewal spoken of meant that the Respondent had failed to renew her license before the expiration date of the current license under which she was allowed to practice her profession in the State of Florida. On March 31, 1978, the petitioner received an application for reinstatement of the Respondent's license, filed by the Respondent. The Petitioner failed to re-register the Respondent for reasons as set forth in the summarization of the Administrative Complaint. The Respondent was advised of this denial of re-registration on May 1, 1978. This in turn led to the consideration of the case by formal hearing with the State of Florida, Division of Administrative Hearings. The facts revealed that the Respondent, Anita J. Shear, in the Circuit Court in and for Dade County, Florida, in Case No. 77- 2285, entered a plea of guilty to unlawfully obtaining services, goods, wares or other things of value by means of a worthless check or draft in the amount of $187.00, for which she was adjudged guilty and sentenced to a term of one year in the Dade County Jail with the provision that after nine months served, the remaining three months should be stayed and withheld and the Respondent be placed on probation for a period of two years, subject to the terms and conditions of the Court. This plea and sentence were entered on March 14, 1978. This offense for which the Respondent entered her plea is a felony under the laws of the State of Florida, in particular, Section 832.05(3), Florida Statutes. On March 14, 1978, in the Circuit Court in and for Dade County, Florida, in Case No. 77-2304, the Respondent entered a plea of guilty to uttering a forged instrument (three counts), felonies under the provisions of Section 831.02, Florida Statutes; grand larceny (three counts), felonies under the provisions of Section 812.021, Florida Statutes, and intentionally receiving, retaining, disposing or aiding in the concealment of stolen property, well knowing the same to be stolen (three counts). The latter plea was made in accordance with the provisions of Section 812.031, Florida Statutes, but it is unclear from the evidence presented whether or not those pleas were to the misdemeanor offenses of receiving stolen property or to the felony offenses. The Respondent was adjudicated guilty of those offenses found in Case No. 77- 2304 and was given a period of probation of two and one-half years beginning at the expiration of the sentence in Case No. 77-2285. A statement of Court action in cases Nos. 77-2285 and 77-2304 may he found in the Petitioner's Composite Exhibit No. 1 admitted into evidence. After discovering the existence of the felony conviction stated above, placed against the Respondent, the Petitioner has denied the Respondent's application for re-registration. The Petitioner may deny the license to the Respondent in view of the felony convictions under the authority established in Section 464.21, Florida Statutes, which states: "464.21 Disciplinary proceedings.-- GROUNDS FOR DISCIPLINE.--The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the hoard of: * * * "Conviction of a felony in the courts of this state . . ." Therefore, the Petitioner was correct in denying the Respondent's application for re-registration as a Registered Nurse.
Recommendation It is recommended that the Respondent, Anita J. Shear, R.N., have her application to re-register as a licensed Registered Nurse in the State of Florida, DENIED. DONE and ENTERED this 3rd day of January, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Anita J. Shear Post Office Box 215 Buena Vista Station Miami, Florida 33137 Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator Department of Professional and Occupational Regulation, Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue The issue in the case is whether the Petitioner should be permitted to take the examination for licensure as a real estate sales associate.
Findings Of Fact In September 2003, the Petitioner filed an application for licensure by the State of Florida as a real estate sales associate. In an application section titled "Background Information" question 1 asks in relevant part, "[h]ave you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere . . ." to which the Petitioner responded in the affirmative. "Background Information" question 4 in relevant part asks, "[h]as any license, registration, or permit to practice any regulated profession, occupation, vocation, or business been revoked, annulled, suspended, relinquished, surrendered, or withdrawn . . ." to which the Respondent replied in the affirmative. Question 1 directs an applicant who responds in the affirmative to disclose the full details of the incident(s) by completion of "form 0050-1." Question 4 directs an applicant who responds in the affirmative to disclose the full details of the termination(s) by completion of "form 0060-1." The disclosure forms completed by the Petitioner (if any) are not in the Respondent's files and are unavailable for review. The Petitioner's application package was presented to the Commission on December 16, 2003. After considering his presentation, the Commission denied his application and instructed him to return with additional information related to the disclosed charges. The Petitioner apparently sought reconsideration, and his application package was again presented to the Commission on March 17, 2004. After reconsidering the Petitioner's background, the Commission again denied his application. The Petitioner then sought an administrative hearing to challenge the denial of his application. On or about July 26, 2000, the Petitioner was arrested and charged with stalking. The Commission's records indicate that the Petitioner completed a pretrial program and was sentenced to 50 hours of community service. At the administrative hearing, the Petitioner testified that he was placed on probation for six months, and had to complete a six- month psychological evaluation. The stalking charge was nolle prossed. At the hearing, the Petitioner stated that at the time of the stalking charge, he was working at a retail establishment. The object of his attention was a 16-year-old female who was working in the vicinity. The Petitioner was approximately 36 years old. The Petitioner asserted that he did not know the female was 16 years old at the time. He denied that he "stalked" the female, but stated that he merely spoke to her a few times in person and attempted to contact her once by telephone. He continued to express surprise at the stalking charge. On or about June 6, 2001, the Petitioner was arrested and charged with burglary of an unoccupied conveyance, a felony, and criminal mischief. He was sentenced to two years of probation, six months of psychological evaluation, and was required to pay court costs. Adjudication of guilt was withheld. At the hearing, the Petitioner stated that he went to the home of an ex-girlfriend to collect a $500 debt she allegedly owed to him. He testified that he knocked on her door and got no response. As he left her residence, he saw that her automobile was unlocked. He opened the hood of the ex- girlfriend's vehicle and ripped out the spark plug cables. He asserted that he "didn't steal anything" because he threw the cables away and didn't keep them. On or about September 5, 2001, the Department of State, Division of Licensing, entered an order based on the Petitioner's stipulation, revoking his Class "D" Security Officer's License, based on the burglary charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 17th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 17th day of August, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Fernando Freire 5242 Millenia Boulevard, No. 304 Orlando, Florida 32839 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802 North Orlando, Florida 32808-1900
The Issue An administrative complaint dated June 19, 1997, alleges that Respondent, Richard P. Bushey, committed aggravated assault and had adjudication withheld on a felony charge of carrying a concealed weapon, and therefore violated Section 493.6118(1)(j), Florida Statutes, and was not qualified for licensure, pursuant to Sections 493.6106(1)(b), 493.6118(1)(f) and 493.6101(7), Florida Statutes. The issues for disposition in this proceeding are whether the allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times relevant to the matters at issue, Respondent, Richard Paul Bushey (Bushey), held a class "D" security license no. D94-16538. Sometime around 9:30 p.m. on July 19, 1996, in Winter Garden, Florida, Joseph Howers was in a convenience store standing in line with his purchases when an individual, later identified as Respondent Bushey, entered the store swearing, waving his arms, and complaining about how people drive. Mr. Howers, who had never met Respondent Bushey before, commented something like, "Life is rough all over. I guess he'll get over it." After paying for his purchases, Mr. Howers left the store and got into his truck which was parked near the door of the store. He leaned over to arrange his parcel on the floor of the passenger side of the vehicle, and as he sat back up, he heard mumbling and saw Respondent Bushey at the truck window on the driver's side. Respondent Bushey was swearing and inarticulate, and Mr. Howers thought there was something wrong with him. Mr. Howers said, "Listen, go away, leave me alone. I don't know what your problem is but it's not with me." Respondent Bushey stepped back, lifted his t-shirt, and put his hand on a gun that was under the shirt. Afraid, but still under control, Mr. Howers said, "You don't want to do this- -I'm going to start my truck." Respondent Bushey pulled the gun out and extended it 2-3 feet from Mr. Howers' head. Mr. Howers backed out slowly and Respondent Bushey walked along, following the truck. When he was close to the road, Mr. Howers leaned across the seat out of the range of his vehicle's windows and stepped on the gas pedal. Once out of sight of Respondent Bushey, Mr. Howers called 911 on his cellular phone and reached the Winter Garden police dispatcher. He reported the incident and the police were sent to the convenience store. Mr. Howers continued to the police station where he was told that the arrest had already been made. He then returned to the convenience store to identify the individual who pulled the gun on him. The individual was Respondent Bushey, who by this time was in custody in the back of the patrol car. It was apparent to Mr. Howers that Respondent Bushey, at the time of the incident, had the ability to pull the trigger and shoot him. Mr. Howers did not provoke or otherwise justify the attack and had a reasonable and well-founded fear for his safety. As admitted in his response to requests to admit, on or about January 13, 1997, Respondent Bushey had adjudication withheld, in Orange County, Florida, on a felony charge of carrying a concealed weapon.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of State enter its Final Order revoking the Class "D" security license of Respondent Paul Bushey. DONE AND ORDERED this 12th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of February, 1998. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Douglas D. Sunshine, Esquire Division of Licensing Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Richard P. Bushey 1620 Cimarron Hills Drive Apopka, Florida 32703
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 18, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers. Section 943.12(3), Florida Statutes (1997). Ms. Gilbert was certified by the Commission as a law enforcement officer on March 12, 1993, and was issued Law Enforcement Certificate No. 136544. On July 1, 1994, Ms. Gilbert was employed as a sworn law enforcement officer by the Metro-Dade Police Department. On July 1, 1994, Officer William Romero was employed by the Metro-Dade Police Department as a law enforcement officer. He was first employed on March 29, 1993, and was still on probation on July 1, 1994. He was working as a uniform patrol officer, and, at the time of the incident in question, he was working alone. On the evening of July 1, 1994, a black female flagged down Officer Romero while he was patrolling the neighborhood. When Officer Romero stopped, she told him that an elderly, Hispanic male was in the vicinity armed with a handgun. Officer Romero promptly confronted the person pointed out by the black female and told him to turn around. When the man did so, Officer Romero saw a revolver sticking out from the waistband of the man's trousers. Although the gun was not in the man's hand at the time, Officer Romero immediately drew his firearm and told the man to put his hands up. The man did not respond but continued to talk with very slurred speech, and he appeared intoxicated to Officer Romero. After a few moments, the man grabbed the revolver in his waistband, but it stuck, and he was not able to remove it. Officer Romero overpowered the man, and they fell to the ground and wrestled. Officer Romero was able to remove the gun from the man's waistband, and he threw it onto a nearby grassy area. Officer Romero handcuffed the man and picked up the gun. He opened the cylinder of the revolver and saw that there were no bullets in the cylinder. Officer Romero took the gun back to his patrol car, and put the suspect in the car as well. Officer Romero then called fire rescue because the man was elderly and intoxicated, and Officer Romero was concerned because they had wrestled for what seemed like several minutes. Officer Romero did not speak with the black female who had flagged him down after she initially told him about the man with the gun, nor did he interview any other persons in the area. Lieutenant Kevin Lindahl arrived on the scene immediately after Officer Romero placed the suspect in the patrol car. Officer Romero explained the situation to Lieutenant Lindahl, showed him the suspect's handgun, and specifically told him that the gun was unloaded during his altercation with the suspect. When he showed the gun to Lieutenant Lindahl, the cylinder was open, and it was obvious that there were no bullets in the gun. Lieutenant Lindahl left the scene a short time after he arrived. As Lieutenant Lindahl was leaving the scene, then- Officer Gilbert and Officer Willie McFadden arrived. These officers were the primary unit assigned to the call. At the time of the July 1, 1994, incident, Officer McFadden was on probation as a new law enforcement officer, and Officer Gilbert had recently completed her probation. They were assigned to the same squad but were not routinely assigned to work together. When they arrived at the scene, both Officer McFadden and Officer Gilbert approached Officer Romero as he sat on the driver's side of his patrol car. Officer Romero told them what happened after he was flagged down; Officer Gilbert and Officer McFadden were both privy to Officer Romero's remarks.2 Officer Romero gave the suspect's revolver either to Officer McFadden or to Officer Gilbert. Officer McFadden asked Officer Romero whether the gun was loaded. Officer Romero responded that the gun was not loaded, and Officer McFadden examined the gun and confirmed that the cylinder was open and that there were no bullets in the cylinder. Both Officer Gilbert and Officer McFadden understood Officer Romero's statement that the gun was not loaded to refer to the time during which Officer Romero and the suspect struggled over possession of the gun, when Officer Romero took the gun from the suspect. Officer Romero turned the suspect over to Officer Gilbert and Officer McFadden and then left the scene. Officer Romero sought out and spoke with his acting sergeant, Officer Sandra Leon. He told her about the incident and advised her that Lieutenant Lindahl had appeared at the scene. During this conversation, Officer Romero told Officer Leon that there were no bullets in the gun. It was important to him because he was a rookie police officer and the July 1 incident was the first time he had confronted an armed suspect; he was nervous because he almost shot the suspect. Officer McFadden spoke with several witnesses at the scene who told him that the suspect's revolver had been loaded at some point during the afternoon and that the bullets had been removed from the gun. He was also told that the suspect had put the gun to someone's head and pulled the trigger twice but that the gun did not discharge. Officer McFadden "asked around for the bullets; no one could give me the bullets. And I immediately said then the gun is unloaded, we can't find any bullets."3 None of the witnesses Officer McFadden interviewed told him that the suspect had discharged the gun before Officer Romero arrived. Officer McFadden did not interview witnesses in the house in front of which the altercation took place. Rather, he stayed with the suspect while Officer Gilbert went into the house and spoke with several witnesses. She was told by Brenda Smith, the woman who had flagged down Officer Romero, that, earlier in the afternoon, the suspect had discharged the firearm into the air outside the house. Ms. Smith also told Officer Gilbert that the suspect entered the house after discharging the gun, pointed the gun at her and another person in the house, and pulled the trigger twice; the gun did not fire but just clicked when the hammer fell. Officer McFadden and Officer Gilbert stayed at the scene about 30 or 40 minutes. They discussed the offenses with which to charge the suspect and began preparing the required paperwork, which consisted of the arrest affidavit, the offense/incident report, and the property receipt. During the discussion at the scene, Officer McFadden raised the possibility of charging the suspect with the offense of "using a firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances" (hereinafter "using a firearm while under the influence"), a crime defined in Section 790.151, Florida Statutes (1993), and identified as a first degree misdemeanor. Officer McFadden looked up the offense in the police manual setting forth crimes and their elements.4 The focus of discussion between Officer Gilbert and Officer McFadden was the statutory requirement that the firearm be loaded; they did not discuss whether the charge was appropriate in light of the fact that the offense was a misdemeanor. Officer McFadden and Officer Gilbert continued discussing the offense of using a firearm while under the influence as they drove the suspect to the Dade County Jail and as they completed the arrest affidavit, which they did while sitting in the patrol car in the jail parking lot. Officer Gilbert told Officer McFadden during this discussion that a witness had told her that the suspect had discharged the gun earlier in the afternoon, before Officer Romero arrived on the scene. Officer Gilbert believed that it was appropriate to charge the suspect with this offense because he was intoxicated and because she had been told that the gun had been discharged during the afternoon. Since she had been told that the gun had been discharged, Officer Gilbert reasoned that the gun had been loaded at some point during the afternoon, a fact which was corroborated by the witness statement given to Officer McFadden. Officer Gilbert and Officer McFadden agreed to charge the suspect with the offense of using a firearm while under the influence.5 Officer Gilbert filled out the arrest affidavit in the jail parking lot, in Officer McFadden's presence. She included the charge of using a firearm while under the influence, and she inserted the phrase "since the gun was loaded" into the narrative portion of the arrest affidavit, squeezing it in at the end of one line of printing as she was editing and completing the affidavit. As revised, the narrative in the completed arrest affidavit contains the following sentence: "V-01 advised that he and V-02 was in fear of their life being taken [when the suspect pointed the gun at them and pulled the trigger] since the weapon was loaded." Officer Gilbert did not mention in the arrest affidavit narrative that the witness Brenda Smith had told her that the suspect had discharged the revolver earlier in the afternoon. Before they left the patrol car, Officer Gilbert and Officer McFadden signed both pages of the affidavit, attesting by their signatures that "I swear that the above Statement is correct and true to the best of my knowledge and belief."6 The offenses set forth in the arrest affidavit when Officer Gilbert and Officer McFadden signed it in the parking lot of the jail were aggravated assault, discharging a firearm in public,7 carrying a concealed firearm, resisting arrest, and using a firearm while under the influence. Probable cause existed to arrest the suspect regardless of whether the offense of using a firearm while under the influence was properly charged. Although Officer McFadden had searched the suspect at the scene, he was searched again by the corrections officers at the jail. This search produced a knife and six bullets, which were found in the suspect's clothing. Officer Gilbert was told that these items were on the suspect's person, and, based on the information that the suspect was carrying a knife, she added to the arrest affidavit the charge of carrying a concealed weapon. Officer McFadden was aware that Officer Gilbert added the concealed weapon charge, which he considered an appropriate charge under the circumstances. The arrest affidavit was turned in at the jail. Officer McFadden completed the first page of the required offense/incident report at the station, after he and Officer Gilbert left the suspect at the jail.8 He included the charge of using a firearm while under the influence, and he cited the charge to Section 790.151, Florida Statutes. Officer McFadden claimed that he was not aware that he had included that offense in the report, that he was simply copying the information from the arrest affidavit completed by Officer Gilbert without thinking about what he was writing.9 At some point, Officer McFadden stopped working on the offense/incident report and began completing the property report. While Officer McFadden was preparing the property report, Officer Gilbert completed the narrative portion of the offense/incident report. Although Brenda Smith was listed in the report as a witness, Officer Gilbert did not mention in the narrative that Ms. Smith had reported that the suspect had discharged the gun during the afternoon, nor did she include in this narrative any statement regarding whether the gun was loaded or unloaded. Officer Gilbert cannot explain these omissions. As acting sergeant and the supervisor of Officer McFadden and Officer Gilbert on July 1, 1994, Officer Sandra Leon was responsible for reviewing the offense/incident report at issue in this proceeding and ensuring that all of the information provided was complete and correct. Officer Leon reviewed the offense/incident report on the evening of July 1, 1994, and she noticed that the offense of using a firearm while intoxicated was included in the report. She was not familiar with this offense, so she looked up the statute defining the offense. She noted that an element of the offense was that the firearm be loaded, and she remembered that Officer Romero had told her that the gun was not loaded when he struggled with the suspect. Nonetheless, without speaking with either Officer McFadden or Officer Gilbert, Officer Leon signed the offense/incident report and forwarded it through channels pursuant to the usual procedures. At the time she signed the report, Officer Leon knew that the narrative did not include all of the elements of the offense of using a firearm while under the influence, and she recalled that Officer Romero had told her that the gun was not loaded at the time he arrested the suspect. The next day, in a brief encounter, Officer Leon "casually" asked Officer Gilbert whether the gun was loaded.10 According to Officer Leon, Officer Gilbert responded affirmatively, and Officer Leon did not pursue the matter any further with Officer Gilbert. Officer Leon and Officer Gilbert did not engage in a conversation regarding the offense/incident report, and Officer Leon asked Officer Gilbert only the one question. Shortly after she spoke with Officer Gilbert, Officer Leon spoke with Officer McFadden about the condition of the gun because he had also signed the offense/incident report. According to Officer Leon, Officer McFadden appeared "visibly upset" during this conversation, and Officer Leon attributed this to the fact that, because he had signed the offense/incident report, he and Officer Gilbert were "equally at fault."11 Officer McFadden told Officer Leon that the gun was not loaded. Finally, Officer Leon spoke again with Officer Romero, who confirmed that the gun was not loaded when he took it from the suspect. Four or five days later, Officer Leon brought the matter to the attention of Lieutenant Lindahl, who had taken several days off from work after the July 1 incident. Officer Leon went to Lieutenant Lindahl because, even though she had signed and submitted the offense/incident report, she was concerned that there was a problem with charging the suspect with the offense of using a firearm while under the influence. Officer Leon told Lieutenant Lindahl that she had asked Officer Gilbert about the condition of the gun and that Officer Gilbert told her that it was loaded. Lieutenant Lindahl then had a copy of the arrest affidavit sent to his office via facsimile.12 Lieutenant Lindahl reviewed the arrest affidavit and questioned Officer Romero and Officer McFadden about the condition of the gun. Officer Romero reiterated his story that the gun was not loaded when he took it from the suspect. Officer McFadden told Lieutenant Lindahl that he had told Officer Gilbert repeatedly that the charge of using a firearm while under the influence was improper because the gun was not loaded, but he did not tell Lieutenant Lindahl that Officer Gilbert had told him that a witness reported that the suspect had discharged the gun before Officer Romero arrived at the scene. Lieutenant Lindahl did not ask Officer Gilbert why the charge of using a firearm while under the influence was included on the arrest affidavit and in the offense/incident report. Rather, he decided it was appropriate to refer the matter to the police department's internal affairs section, and he promptly filed a complaint against Officer Gilbert.13 Lieutenant Lindahl based his decision to file the complaint against Officer Gilbert on the statements of Officer Romero and of Officer McFadden. Lieutenant Lindahl concluded that Officer Gilbert included the charge of using a firearm while under the influence in the arrest affidavit even though she knew that the gun was not loaded and that this was an essential element of the offense. Lieutenant Lindahl testified that, if the gun had in fact been discharged, the charge of using a firearm while under the influence "would have been appropriate."14 Lieutenant Lindahl did not speak with Officer Gilbert after he filed the complaint because she was the subject of an internal affairs investigation, and it would have been improper for him to interfere in the investigation by talking with her. It is not unusual for arresting officers to charge a suspect with an offense when all of the elements of the offense are not present. If a charge included in an arrest affidavit is not appropriate, the responsible police officers bring it to the attention of the assistant state attorney handling the case, who sees that the unsupported charge is stricken from the arrest affidavit. When Officer McFadden and Officer Gilbert met with the assistant state attorney at what is called the "prefile conference" to discuss the arrest on July 1, 1994, they asked the assistant state attorney whether, in his opinion, the charge of using a firearm while under the influence should be stricken from the arrest affidavit because the gun was not loaded. The assistant state attorney reviewed the statute and concluded that the charge should be dropped. On October 20, 1994, Officer Gilbert gave a sworn statement to the internal affairs investigator for the Metro-Dade Police Department. In that statement, Officer Gilbert testified that she overheard Officer Romero state that the gun was unloaded at the time of the altercation; that she and Officer McFadden agreed to charge the suspect with using a firearm while under the influence; that the charge and the phrase "since the gun was loaded" were on the arrest affidavit before Officer McFadden signed the affidavit; and that she never spoke with Officer Leon about the offense/incident report. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert knowingly made a false statement that was intended to mislead when she included in the arrest affidavit the offense of using a firearm while under the influence and inserted in the affidavit the phrase "since the gun was loaded." Rather, based upon the consideration of all of the evidence presented herein and upon the assessment of the credibility of the witnesses, the persuasive evidence supports the finding that Ms. Gilbert acted in good faith when she included the charge and the phrase "since the gun was loaded" in the arrest affidavit. It was Officer Gilbert's understanding from the statement of Brenda Smith that the suspect had discharged his gun prior to the arrival of Officer Romero and that the suspect was intoxicated when he did so, and Officer McFadden agreed with Ms. Gilbert that the offense of using a firearm while under the influence could appropriately be charged.15 In any event, Ms. Gilbert's use of the phrase "since the gun was loaded" in the arrest affidavit was, under the circumstances, ambiguous. Pursuant to her testimony, which is credited, Officer Gilbert assumed that, because the suspect discharged the gun, the gun had, at some point, been loaded; Officer Leon and Lieutenant Lindahl assumed that the phrase referred to the time period in which the suspect was involved in the altercation with Officer Romero. The first opportunity Officer Gilbert was given to explain what she meant by the phrase was in the sworn statement she gave on October 20, 1994. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert gave false statements, which she did not believe to be true, in her sworn statement given on October 20, 1994, to the Metro-Dade Police Department's internal affairs investigator. First, the conflicts in the testimony of Officer McFadden and Ms. Gilbert have been resolved on the basis of the evidence presented herein, and the persuasive evidence supports the finding that Ms. Gilbert did not make a false statement under oath when she stated that Officer McFadden signed the arrest affidavit after she included the offense of using a firearm while under the influence and inserted the phrase "since the gun was loaded." Second, contrary to the position taken by the Commission, Ms. Gilbert did state in the October 20, 1994, sworn statement that she had overheard Officer Romero state that the gun was not loaded when the suspect was arrested. Third, although Ms. Gilbert's testimony in her sworn statement that she had never discussed the report with Officer Leon conflicts with Officer Leon's testimony that she asked Officer Gilbert if the gun was loaded, it is reasonable to infer that, due to the brief, casual nature of Officer Leon's inquiry to Ms. Gilbert and the length of time which elapsed between the incident and her sworn statement, Ms. Gilbert simply forgot that Officer Leon had asked her that one question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission dismiss the Administrative Complaint against Hawanda Gilbert dated June 28, 1996. DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1999.
Findings Of Fact The Respondent, Mark A. Emme, was certified by the Criminal Justice Standards and Training Commission on June 6, 1983, and issued certificate number 02-33713. Answer, para. 1. On the night of April 29, 1985, the Respondent was employed as a Deputy Sheriff for the Lee County Sheriff's office and was on duty as a patrol officer assigned to a patrol car. The Respondent received a call to go to the Malibu Apartments to investigate a complaint of trespass or disturbance caused by Marc Haag. T. 151. In the week or so prior to this, the Respondent had investigated an alleged assault by Mr. Haag upon his former girlfriend. Id. In the few days following that investigation, the Respondent had been called to the apartment two or three times due to alleged disturbances by Mr. Haag, but each time he and other officers arrived, Mr. Haag had departed. T. 150-51. Two people lived in the apartment, Jean Price and Lori Johnson. T. 151. Ms. Price had informed the Respondent that Mr. Haag was not allowed in her apartment. Upon arrival at the apartment, the Respondent learned from Ms. Johnson that Mr. Haag did not have permission to be in the apartment. The Respondent was escorted to Ms. Price's bedroom by Ms. Johnson and her boyfriend, Dan Polakoff. Mr. Haag was inside the bedroom. T. 151. Mr. Haag has studied and trained in an oriental martial art (tae kwon do) for 25 years, and has fought in over 400 amateur fights. T. 11, 38. Mr. Haag was intoxicated on the evening of April 29, 1985. T. 48. Mr. Haag asserted that Ms. Johnson was the only person who lived in the apartment. T. 28. Thus, Ms. Johnson, upon Mr. Haag's own admission, had the authority to ask him to leave. Mr. Haag admitted that the events that occurred on April 29, 1985, were "domestic-related," and that he and his girlfriend were having "domestic problems." T. 9, 26. Mr. Haag was evasive about these "domestic problems" or about "his case," the charge of trespass or disorderly conduct. He initially refused to answer any questions concerning the nature of these problems. T. 26-27. Mr. Haag denied that Ms. Johnson had asked him to leave the apartment prior to the arrival of the police officers. T. 28. He initially disclaimed memory of whether Mr. Polakoff was present outside the apartment when he had been escorted outside by the Respondent. T. 30. He disclaimed any memory of Mr. Polakoff saying anything to him or arguing with him outside the apartment. T. 31. He claimed he could not remember having any problem with Mr. Polakoff, or arguing with Mr. Polakoff. T. 37. It is not credible that Mr. Haag would forget these matters given the clear evidence that Mr. Haag was trying to sleep in a bedroom in Ms. Johnson's apartment, Ms. Johnson had called the police to have Mr. Haag evicted and arrested, and Mr. Polakoff yelled at Mr. Haag and assaulted him outside the apartment. Mr. Haag had an interest in avoiding conviction of criminal charges arising from his presence in the apartment and his arrest on April 29, 1985. (Charges against Mr. Haag were ultimately not prosecuted.) This, coupled with his apparent evasion of the issues underlying his emotional state at the time of the arrest make his version of his own arrest unworthy of belief. Thus, the findings of fact which follow concerning the arrest of Mr. Haag are based upon the testimony of Deputy Sheriff Hudnall and the Respondent, rather than of Mr. Haag. It should be noted that the "statements" of Mr. Polakoff and Ms. Johnson were never properly placed into evidence (see the discussion in the Appendix), and thus are not evidence in the record concerning the arrest of Mr. Haag. The Respondent knocked on the bedroom door. The door was closed and locked. T. 151. Mr. Haag came to the door and opened it. Seeing that it was a police officer, he tried to close the door. The Respondent inserted his flashlight in the opening, and forced his way in. Id. The Respondent asked Mr. Haag why he was present in Ms. Johnson's apartment. Mr. Haag stepped back and assumed a karate stance. T. 152. Prior to confronting Mr. Haag, the Respondent had been warned that Mr. Haag had a violent temper, that he knew an oriental martial art (tae kwon do), and that he could easily injure the Respondent. T. 167. Mr. Haag was advised that he must leave or be arrested for disorderly conduct or trespass. T. 152. Mr. Haag insisted he had a right to be there. Id. The Respondent ordered Mr. Haag to leave, telling Mr. Haag that Ms. Johnson had called the police and wanted him to leave. Id. At that point, the Respondent informed Mr. Haag that he was under arrest. Id. The Respondent then tried to grab Mr. Haag. Mr. Haag backed away and assumed a karate stance. T. 152. The Respondent seized Mr. Haag's arm, wrestled him to the floor, placed his flashlight behind Mr. Haag's neck, and handcuffed Mr. Haag. T. 152-53. Mr. Haag struggled, but did not use his martial arts skills either by choice or due to the fact that he was intoxicated. T. 167. The Respondent then forcibly escorted Mr. Haag out of the apartment to the patrol car. Mr. Haag repeatedly asked the Respondent for his shoes, but the Respondent continued to move Mr. Haag out of the apartment. T. 9. Mr. Haag resisted all of the way, and the Respondent had to pull up on the handcuffs to make Mr. Haag move out of the room to the car. T. 153-54. During the entire arrest, Mr. Haag talked back to the Respondent, and physically resisted the arrest, but did not offer violent resistance (resistance intended to or likely to harm the arresting officer). On the way out, the Respondent and Mr. Haag were followed by Mr. Polakoff. T. 153. Once outside, the Respondent "put" Mr. Haag on the hood of the car. T. 154. It is likely due to the resistance of Mr. Haag that Mr. Haag was placed upon the hood of the car in a rough manner. At this point, Deputy Sheriff Ronald Hudnall arrived to assist. T. 44. When he arrived, Deputy Sheriff Hudnall observed Mr. Haag on the hood of the patrol car and the Respondent behind Mr. Haag "keeping him secure." T. 45. Deputy Sheriff Hudnall became primarily involved with Mr. Polakoff. Mr. Polakoff was "very verbal," and was angrily yelling at Mr. Haag. T. 45, 154. While Mr. Haag was lying on the hood, Mr. Polakoff assaulted Mr. Haag, trying to strike Mr. Haag in the face, and causing Mr. Haag to hit the hood of the patrol car. T. 47-48, 154. Deputy Sheriff Hudnall took Mr. Polakoff to the rear of the car. T. 154, 48. During the time that Deputy Sheriff Hudnall was present, Mr. Haag was very loud and obnoxious. T. 48. He was yelling such things as "what are you arresting me for," and generally screaming and yelling. T. 46. He also was screaming that he wanted his shoes. T. 154. The Respondent was having a difficult time getting Mr. Haag into the patrol car, and kicked Mr. Haag on the leg or in the mid-section to put him in the car. T. 46. Mr. Haag's shoes were then placed in the patrol car. T. 155. Mr. Haag suffered a bruise to his arm and hip and the tops of his toes on one foot were skinned during the arrest. P. Exs. 3-6. Mr. Haag had no shoes on during the arrest. Mr. Haag was injured when his foot was caught beneath a door during the arrest. T. 116. These injuries were proximately caused by Mr. Haag's resistance to the arrest and by the reasonable efforts of the Respondent to effectuate the arrest in the face of this physical resistance. The Respondent then left the Malibu Apartments intending to take Mr. Haag to the Lee County Jail. Enroute to the Lee County Jail, the Respondent saw a car making a left hand turn the wrong way into the south bound lane of highway 41, which is a divided highway, and driving the wrong way. The Respondent pursued the car at a high rate of speed, and three oncoming cars were forced off the road. Eventually, the Respondent pulled the driver over on the median of the highway. T. 155-56. The driver, John Mossup, was very intoxicated, and had to lean on his car for support. T. 156. Mr. Mossup had been arrested once before for driving under the influence, loitering, and prowling. T. 160. The Respondent attempted to administer a field sobriety test, but had difficulty because Mr. Mossup was so drunk and had trouble paying attention. T. 157. An officer often has to raise his voice to get the attention of an intoxicated person to administer a sobriety test in the field. T. 176. The engines of nearby cars were running, and additional background noise came from passing traffic. T. 157. As the Respondent attempted to administer the sobriety test, City of Ft. Myers officer Curtis Richard Roberts arrived. Officer Roberts was accompanied by an Officer Dennison, who did not testify. The Respondent was by this time quite upset, and was yelling at Mr. Mossup to shut up. T. 76. At about the same time, Lee County Deputy Sheriff Steven Ford also arrived. T. 50-51. He told the Respondent to stop the test and arrest Mr. Mossup. T. 158. The Respondent then placed Mr. Mossup under arrest, and told him to place his hands on the hood of the car so that the Respondent could conduct a frisk search. T. 52. Mr. Mossup refused and tightened up, thus making it difficult for the Respondent to handcuff him. T. 52-53. He was yelling obscenities, but was not trying to hit the police officers. T. 77-78. The Respondent had to overcome this resistance with force. He did so with the assistance of Deputy Ford. T. 53. The force used by these offices to handcuff Mr. Mossup at this point was reasonable in light of the resistance put up by Mr. Mossup. After Mr. Mossup had been handcuffed, he continued to be uncooperative, stating at times that he needed his medicine in his car, and would not go to the Respondent's car. T. 54. He was pulling away, and attempting to keep himself from being pulled to the rear of the sheriff's car. The Respondent struck Mr. Mossup several times in the ribs with his fist. T. 55, 159, 78. When the Respondent and Mr. Mossup got to the sheriff's car, Mr. Mossup refused to get in. T. 53. The Respondent struck Mr. Mossup in the stomach with his flashlight, causing Mr. Mossup to double over; Mr. Mossup sat in the car, and his feet were moved inside by the officers. T. 53-54, 161. There are ways to persuade an uncooperative person to submit to an arrest and handcuffing, which include talking to him and, if that fails, to apply pressure to places such as finger joints or on the handcuffs, or bending a finger out of place, all of which cause pain to the person arrested and make struggle less attractive. T. 56-57, 79. One of the two other officers on the scene would have used other such tactics to get Mr. Mossup into the patrol car. T. 57. The arresting officer on the scene the longest will typically have greater insight into which techniques are needed to subdue a belligerent person during an arrest. T. 62. The Respondent struck Mr. Mossup during the arrest in the ribs with his fists and in the stomach with his flashlight because the arrest was taking place in the median of a busy highway, and the Respondent wanted to complete the arrest quickly before Mr. Mossup pushed or caused a bystander or an officer to fall into the highway to be injured or killed. T. 159-60. Mr. Mossup may have had a small lump above his left eye when he was placed in the car, and had a scab on his nose, but otherwise his face was not injured in the way it became injured later; that is, the left eye was not swollen shut, and his face was not lacerated and bleeding. T. 63, 156, 68-69, 17. After Mr. Mossup had been placed in the left-hand side (driver's side) of the back seat of the Respondent's car, he continued to yell and began to kick the screen separating the back seat from the front seat, and to hit the top of his forehead against the window. T. 17, 67-68. Mr. Mossup's primary concern continued to be his medicine. T. 61, 57. The Respondent walked to the back of his car and told Mr. Mossup to stop. T. 80. Mr. Haag testified that the Respondent sprayed mace into the back seat, T. 24, but this testimony is rejected as not credible. T. 83, 64-66, 108, 141, 144. Although he was doing everything possible to cause a disturbance, T. 32, and it was a possibility that the window might have been broken, T. 68, Mr. Mossup did not appear to be banging on the car with enough force or with the intention to hurt himself, T. 80, 33, and neither of the two of the other officers on the scene observed any injuries to Mr. Mossup's face or head after he caused this commotion. T. 81, 84. While it is true that the windows in the back seat were tinted, T. 168, it is unclear to what degree this might have made it more difficult to see Mr. Mossup in the back seat. Several officers testified that they saw Mr. Mossup acting violently in the back seat, and no officer testified that it would have been impossible to see into the back seat from the outside. The Respondent asked Deputy Sheriff Ford if he could transport Mr. Mossup, but he could not because he was needed to stay on patrol in the area. T. 163. Thus, the Respondent had to take both prisoners to the jail in his car. The Respondent normally would not have attempted to transport two such prisoners when one was violent to begin with. T. 163. Deputy Sheriff Ford was the senior officer, however. Id. During the drive to the jail, Mr. Mossup continued to yell obscenities at the Respondent, to taunt the Respondent with insults, to kick the screen between the front and back seats, and to bang either his head or his feet against the window in the back seat. T. 18, 163-64. Mr. Mossup was directly behind the Respondent, and thus could not be seen by the Respondent. T. 164. The Respondent told Mr. Mossup that if he did not stop, he (the Respondent) would do something about it. T. 18. Mr. Mossup continued the disturbance. Id. Mr. Haag shouted that Mr. Mossup was about to break the window. Id. The Respondent called headquarters on his radio stating that his prisoner was becoming disorderly in the back-seat and mentally disordered, and asked for another unit to meet him. T. 58, 164. Headquarters dispatched Deputy Sheriff Steven Edlin to assist. T. 58, 87. The Respondent stopped his car, got out, and opened the back door on the driver's side. Mr. Mossup may have then kicked the Respondent in the wrist, T. 164, 25, 36, but if he did, the blow was not enough to cause the Respondent to be unable to use his hand to punch. The Respondent's wrist was bruised after the incident. T. 164. The Respondent then lost control of his temper. T. 26. He took Mr. Mossup out of the car and punched him seven or eight times in the face. T. 19- Mr. Mossup's hands were still handcuffed behind his back. Mr. Mossup fell to the ground screaming that the Respondent not hit him any more. T. 20-21. The Respondent punched him a few more times while he was on the ground. Id. Mr. Mossup continued to scream not to hit him any more. T. 21. All of his hostilities were gone at this point. Id. Deputy Sheriff Steven Edlin then arrived. T. 87. He arrived after the beating had ceased. T. 21, 166. As he arrived, he saw the Respondent's car parked in the roadway, and saw Mr. Mossup lying face down on the ground by the vehicle. T. 87. Mr. Mossup's head was towards the front of the vehicle, about four feet from the car. T. 92. The Respondent was standing by the door of his car, and the back door on the driver's side was open. T. 92-93. The Respondent said to Deputy Sheriff Edlin that he thought he had broken his hand. T. 88. Deputy Sheriff Edlin immediately took Mr. Mossup into custody to transport him to the jail. T. 89. Mr. Mossup was hysterical and crying; his left eye was swollen completely shut, he had a cut across the bridge of his nose, and he was bleeding badly from his face. Id.; T. 59, 20; P. Ex. 1. While Mr. Mossup was crying, he told Deputy Sheriff Edlin that the Respondent had "beat the shit out of him." T. 59. This statement apparently occurred within only a few minutes of the beating, and while Mr. Mossup was still in a hysterical state from the beating. T. 21, 166. Upon arrival at the jail, Sergeant Charles C. Powell determined that Mr. Mossup needed medical treatment; he refused to allow Mr. Mossup to be admitted to the jail until he had had medical treatment. T. 98. Mr. Mossup was still extremely upset, and stated that an officer had beat him up. Id. The injuries that Mr. Mossup had when he arrived at the jail were much different than the small lump observed above his eye when he was first arrested. T. 69. The next morning, there was a red substance that appeared to be blood on the edge of the front seat, the cage area separating the front and back seat, and on the floor of the back seat of the Respondent's car. T. 139. The substance was never analyzed to verify that it was blood. T. 144. Since Mr. Mossup had a scab on the bridge of his nose when he was arrested, and a blood-like substance was found the next day in the Respondent's car, it is possible that banging around in the back seat by Mr. Mossup caused the scab to have been torn and to have been a partial cause of the bleeding later observed on Mr. Mossup's face. This, however, does not explain how Mr. Mossup received the injury to his eye. Nor is the existence of some bleeding caused by Mr. Mossup himself inconsistent with additional bleeding injuries caused later by the Respondent. As will be discussed ahead, the preponderance of the evidence leads to the conclusion that the Respondent beat Mr. Mossup as found in finding of fact 36. The Respondent related to Sergeant Powell what had happened with Mr. Mossup on the way to the jail. The Respondent's version of what happened as related briefly to Sergeant Powell was essentially the same as his testimony at the formal administrative hearing. The Respondent's version of events is contradicted in significant ways by Deputy Sheriff Edlin's observations. The Respondent asserted that after he stopped the car and opened Mr. Mossup's door, Mr. Mossup came out of the patrol car aggressively, kicking and moving toward the Respondent. T. 164-65, 100. The Respondent further claimed that he and Mr. Mossup fell to the ground, and that he (the Respondent) then stood up and closed the back door of the patrol car. T. 165. The Respondent then stated that Mr. Mossup tried to get up, and the Respondent had to hold Mr. Mossup as close to the car as possible to hold him down, and that Mr. Mossup's head was toward the trunk, or the rear of the vehicle. Id. At the jail on the night in question when he arrived, the Respondent told Sergeant Powell that he had had to hold Mr. Mossup down until another officer got there. T. 100. Mr. Mossup was six feet two inches tall and weighed from 180 to 190 pounds. T. 156. The Respondent was five feet eight inches tall. If Mr. Mossup in fact had continued to struggle, to try to get up and assault the Respondent, as the Respondent testified, the Respondent would have been holding Mr. Mossup down when Deputy Sheriff Edlin arrived, and Mr. Mossup would have been struggling angrily. Yet Deputy Sheriff Edlin testified that when he arrived, the car door was open, the Respondent was not holding an angry, violent Mr. Mossup down, but was standing up. Mr. Mossup was lying with his head toward the front of the car, not wedged against the car toward the trunk. Mr. Mossup was not behaving like an angry drunk who had just assaulted a police officer, but was behaving like a drunk who had just been beaten: he was crying and hysterical. See finding of fact 39 above. These are important differences. If true, the observations of Deputy Sheriff Edlin show that when Deputy Sheriff Edlin arrived, the door was open, Mr. Mossup was no longer violent or aggressive, but was defeated and hysterical, that the Respondent was not holding down a violent prisoner, but was standing over a substantially intoxicated prisoner who had been beaten into submission. Another bit of evidence consistent with the conclusion that the Respondent beat Mr. Mossup is the fact, as testified to by the Respondent, that the Respondent opened the back door after he stopped. It would have been more consistent with a finding that Mr. Mossup assaulted the Respondent had Mr. Mossup opened the back door himself. But Mr. Mossup's hands were handcuffed behind his back. Mr. Mossup probably could not have opened the door himself. The Respondent did not explain why he opened the back door after he stopped. With a backup officer on the way, it would seem to have been more prudent for the Respondent to have left Mr. Mossup inside the car until help had arrived instead of opening the door to try to deal with Mr. Mossup alone. The only other reason for opening the door would have been to beat Mr. Mossup. The Respondent testified that after Mr. Mossup left the car, he (the Respondent) closed the back door. However, this testimony has been rejected in favor of Deputy Sheriff Edlin's testimony that the door was open when he arrived. The fact that the door was open leads to the inference that Mr. Haag had a better view than had the door been closed. However, even if Mr. Haag viewed the beating through the tinted windows, there is no evidence that one could not see the outside through the tinted windows of the patrol car. It is inferred that the Lee County Sheriff's office did not tint the windows of its patrol cars so that one could not clearly see the outside from the inside of the patrol car. While it is true that Mr. Haag was an unreliable witness with regard to the circumstances of his own arrest, his testimony concerning the beating of Mr. Mossup is supported by the physical evidence of injury to Mr. Mossup, by Mr. Mossup's own statements immediately after the incident and while still hysterical from the beating, and, most importantly, by the observations of Deputy Sheriff Edlin as discussed above. Deputy Sheriff Edlin had no reason to testify untruthfully, nor did it appear that he was mistaken in his observations when he arrived at the scene. His demeanor was straightforward, clear, and unequivocal. His observations are believed. The testimony of the Respondent is rejected as not credible. There is insufficient credible evidence to conclude that the Respondent used excessive force in the arrest of Mr. Haag. An internal investigation was conducted by Lieutenant George Miter of the Lee County Sheriff's Department. The allegations of excessive force against Mr. Mossup and Mr. Haag were sustained, and the Respondent was terminated from employment. T. 109-123. The reasons that the allegations were sustained are not known on this record because the evidence considered in the internal investigation is not a part of this record. Thus, this fact is of little weight in resolving issues presented in this case. Prior to the night of April 29, 1985, there is no evidence that the Respondent used excessive force in making an arrest. His prior work with the Ft. Myers Police Department was acceptable and without complaint. T. 171; R. Exs. 5 and 6. He had made over 200 arrests, including arrest of persons driving under the influence, and had had no complaints or reports of excessive force. T. 173. None of the five officers who testified and who worked for the Lee County Sheriff's office had heard any reports that the Respondent had previously used excessive force with respect to an arrest. T. 185, 146, 148, 49, 85. Reports of excessive force normally get around to other officers when excessive force occurs. T. 185, 149. He has been commended on several occasions for his work with other officers in making arrests or, on one occasion, in the confrontation and calming of a mentally ill person. R. Exs. 1-4. While this evidence is favorable to the Respondent, it is not inconsistent with the finding that on the night of April 29, 1985, the Respondent lost his temper and beat Mr. Mossup.
Recommendation For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order denying the motion to dismiss and revoking the certification of Mark A. Emme as a law enforcement officer. DONE and ENTERED this 14th of September, 1987. WILLIAM C. SHERRILL, JR. 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 14th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0181 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: As to Marc Haag: 10a, 10b, 14a, 14b, 14c. These proposed findings of fact are based upon statements of witnesses that were not properly offered into evidence. The statements were read or paraphrased by counsel, but were never authenticated, identified, or offered into evidence, and no witness testified that such statements were in fact made by anyone. Thus, these proposed findings are rejected for lack of evidence. 28, 29, 30, 31. These proposed findings are essentially irrelevant. 32, paragraphs 2, 4, and 5. These proposed findings are not relevant since Mr. Haag's testimony as to his own arrest has been rejected. 32, paragraph 7. Rejected for the reasons stated above with respect to proposed findings of fact 10 and 14. As to John Mossup: 6 and 7. Subordinate to findings that Mr. Mossup was quite intoxicated. 13. There is no issue regarding the propriety of having administered a sobriety test, and thus this proposed finding is not relevant. 17, 18, 19, 19a, 19b, 20, paragraph 4. Subordinate to finding of fact 26. Moreover, the Petitioner does not assert in its proposed findings of fact that the portion of the arrest from handcuffing of Mr. Mossup to placement in the patrol car involved excessive force. 25, paragraph 2, "and that he was banging his head on the screen." Rejected due to subsequent clarifying testimony. T. 67. 25, paragraph 7. The time for manifestation of a black eye injury is not supported by the record. T. 73. The proposed finding that Mr. Mossup was banging his head on the cage is not supported by clear enough testimony. See finding of fact 31. The proposed finding that Mr. Mossup's injuries occurred prior to the arrest is rejected as discussed in finding of fact 30. 35, 36, 51. These proposed findings, based upon the testimony of the Respondent, have been rejected as not credible for the reasons discussed in findings of fact 36-52. The proposed finding that Mr. Mossup was "giving everyone a hard time" at the sally port is rejected as discussed in findings of fact 39 and 40. This proposed finding is not relevant. A smaller back seat is consistent with the evidence that Mr. Mossup was kicking the screen and banging his head on the window. The evidence does not suggest that the back seat was so small that Mr. Mossup's body was compressed into a position of complete immobility. 43 through 48. These proposed findings of fact are subordinate to, and supportive of, finding of fact 54. 52. The evidence supports a finding of that a blood-like substance was found, but a finding that it was blood is not supported by the evidence. Finding of fact 42. Findings of fact proposed by the Respondent: 4. With respect to the second sentence, this proposed finding is based upon testimony of Mr. Haag which, in this instance, has been found to be not worthy of belief. See findings of fact 4-10. Thus, this finding of fact is rejected. 7, 9, and 11. These proposed findings are based upon testimony of Mr. Haag which, in this instance, has been found to be not worthy of belief. See findings of fact 4-10. Thus, these findings of fact are rejected. Further, proposed finding of fact 9 concerning the manner in which Mr. Haag's feet were injured, is rejected due to Mr. Haag's earlier inconsistent statement as to the cause of those injuries. Finding of fact 20. 16. The availability of "less forceful methods" was not shown by a preponderance of the evidence. It is clear that the Respondent tried to talk to him during the sobriety test, and Mr. Mossup was too drunk to respond to talking. Bending a person's finger out of place, or placing painful pressure on selected body points is not less violent than a blow to the ribs or the stomach. Use of pressure points may be less noticeable, but the pain is functionally equivalent. Moreover, Respondent was reasonably concerned about the safety of himself and others. Traffic was continuing to pass by on the highway, and Mr. Mossup was behaving drunkenly and unpredictably on the median. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302 William G. Whitcomb, Esquire 1534 Hendry Street, Suite 202 Fort Myers, Florida 33901 Rod Caswell, Director Criminal Justice Standards Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
Findings Of Fact As described in Respondent's exhibit 3, on May 18, 1987 Petitioner made application with Respondent for licensure. In response to question 13 about the number of arrests he had had, he noted that in 1947 that he had been arrested for the offense of "None (sic) tax liquor" and the outcome was said to be "six months". This is perceived as reference to the fact that the violation related to a liquor law in which Petitioner says he was given a six month sentence. A Federal Bureau of Investigation offense report, part of Respondent's exhibit 5, speaks to an arrest on February 3, 1949 related to violation of an Internal Revenue regulation of liquor laws and shows a jail commitment upon default of a $500.00 bond. The application also stated that the Petitioner had been arrested several times for fighting, but the cases had been dismissed. Petitioner was licensed by Respondent based upon the 1987 application previously referred to. Subsequent to his licensure he was arrested on November 8, 1987 for battery, in particular spouse abuse. This was an alleged violation of Section 784.03, Florida Statutes. The Florida Department Law Enforcement offense report, part of the Respondent's composite exhibit 3, shows the disposition of the offense by an adjudication of guilt. Petitioner through his testimony identified that he had pled nolo contendere to this offense. As a consequence of this incident he lost his license through revocation proceedings. On May 8, 1989 Petitioner reapplied for licensure. A copy of his application may be found as part of Respondent's composite exhibit 2. In this instance in response to question 13 he indicates that he was arrested in 1958 for making moonshine whiskey and served five months and 29 days. Again this is perceived as an acknowledgment of the offense of February 3, 1949 previously described. In answer to question 13 he also referred to the 1987 offense related to his wife as "spousal abuse" and stated that he had stayed overnight in jail. The Florida Department of Law Enforcement offense report which is part of Respondent's exhibit 3 refers to "2D credit", taken to mean two days credit for the time he had served. In the 1989 application Petitioner sought the assistance of counsel in offering a supplemental answer to question 13 which gives a more complete explanation of the non-tax whiskey case and the 1987 battery. In the course of this explanation by counsel he states that adjudication of guilt was withheld on the plea of nolo contendere for the 1987 offense. Citation is made to the case of Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). In addition a disclaimer is given about other offenses in 1971 for larceny; in 1985 for carrying a concealed weapon; in 1983 for loitering and the belief that these items must pertain to someone other than the present Thomas Felton. Given the close proximity in time of the 1989 application to the loss of the license issued in 1987 through revocation, Petitioner withdrew his request for licensure. In the 1989 application the information that had been placed on the application form had been put there by Petitioner's wife. On February 7, 1990 Petitioner submitted his present application for classes "D" and "G" licenses. On this occasion the form application was filled out by his employer in the person of a Ms. Ross. Petitioner doesn't know what Ms. Ross used as an information base for filling out the 1990 application. She was aware of the fact that he had spent the night in jail in 1987. This is related to the incident with his wife in which he was arrested for battery. In the 1990 application, Respondent's exhibit 1, in answer to question 13 Petitioner says that in April 1948 that he had been arrested for moonshine selling and was given six months. Again this is seen as a comment on the February 3, 1949 incident related to the liquor laws. In the 1990 application he also mentions that he had been arrested several times for fighting and that the cases had been dismissed. He makes no reference to the 1987 incident of battery against his wife. Petitioner describes his omission of the 1987 arrest as that of someone who is careless as opposed to someone attempting to hide the facts. He accurately points out that the Respondent had a record of the 1987 battery offense against his wife. Having considered his explanation in the context of other facts presented, Petitioner is not found to have intended to misrepresent information concerning the 1987 battery offense against his wife when submitting the 1990 application. On March 13, 1990 as shown in the joint exhibit 1, Petitioner rejected the request for licensure. It gave as reasons the existence of the battery charge of November 8, 1987 in that the failure to disclose information about that charge was seen as a fraudulent or willful misrepresentation in applying for the license, in violation of Section 493.319(1)(a), Florida Statutes. Further, the existence of that offense was seen as the conviction of a crime directly related to the business being sought for licensure, in a circumstance where a plea of nolo contendere had been entered, in violation of Section 493.319(1)(c), Florida Statutes. This matter was seen as being in violation of Section 493.319(1)(j), Florida Statutes in that Petitioner was alleged to have committed a battery or use of force or violence against his wife. There is the overall reference within this explanation of denial which allows the agency in certain instances to deny a license for violation of any provision within Chapter 493, Florida Statutes. In particular that reference is Section 493.319(1)(p), Florida Statutes. For all these statutory reasons the application was denied. On March 27, 1990 Petitioner filed a formal petition requesting a hearing. This request was submitted to the Division of Administrative Hearings for consideration. The final hearing ensued. According to Petitioner the incident of spousal abuse occurred as follows: On the night he was arrested he was awakened by his wife who said that their children were fighting and one of those children had a knife. He used a metal walking stick to stop the daughter with the knife and hit his wife on the left forearm which became swollen after that blow. At the time he hit her she was behind him. He was then taken to jail and spent the night. He pled no contest without benefit of consultation with counsel. The judge told him he could go home. At the time he entered his plea he told the judge that he had hit his wife accidentally. Petitioner didn't indicate that he was trying to restrain the wife at the time he struck her. He stated that he was unacquainted with what the wife may have told the police about the incident. When cross-examined Petitioner said that he could not recall if he had been arrested for striking his wife before this incident, but that he didn't think so. He was then confronted with information concerning a 1969 incident of striking his wife and upon being reminded of that circumstance admitted that he had been fighting with his wife in that year. He also acknowledged that he could have been fighting with her in 1967. The wife in 1969 was the same wife as in 1987. The 1969 incident with his wife was felt by the Petitioner to have been another occasion of problems related to his children. As part of Respondent's composite exhibit 5, the Federal Bureau of Investigation offense report, there are items related to "DC" taken to mean disorderly conduct. The disposition of the disorderly conduct case in 1967 is shown as being discharged from municipal court. The 1969 incident of disorderly conduct is one disposed by a fine of $20.00 in municipal court. Both the incident in 1967 and the incident in 1969 occurred in Jacksonville, Florida, as did the 1987 incident with his wife. In her testimony Petitioner's wife says that she was hit on her right hand in the 1987 incident. She testified that the children called the police and that a lady officer took Petitioner to jail. She indicates in the testimony that the Petitioner and his wife were not fighting. She acknowledges that she was hit with a walking cane. She says she told the police that she was hit on her hand by her husband. She said she doesn't know whether she was hit intentionally. She does acknowledge that there was a scuffle of some sort. She states that in the past that she has called the police and that her husband was arrested when they have fought. In 1969 both she and her husband were arrested for that incident, according to the wife. She has no specific recollection about the incident in 1967. On the night that her husband was arrested in 1987 she did not attempt to stop the police from making the arrest. According to Mrs. Felton, at a later time Petitioner told her that he didn't intend to hit her. She says that six or seven kids were involved in the incident from ages 16 to 25. She states that she forgave her husband for the incident on the next day following the November 8, 1987 fracas. Kathy Evans offered testimony. She is an officer with the Jacksonville Sheriff's Department in Jacksonville, Florida. She responded to the incident on November 8, 1987 and arrested the Petitioner. By report that was given to her at the scene after she arrived, gathered from unidentified sources at the scene, she was led to believe that the Petitioner and his wife had had an argument about the children. This lack of identification of the reporters is associated with the officer's inability to recall at hearing who had made the report. By report, Petitioner sided with one of the daughters and the wife favored the other daughter's position. Petitioner got angry with his wife and hit her. In sequence, there had been a verbal argument between the daughters and the parents became involved and the wife was struck. As the officer recalls the nature of the injury, it was to the right arm of the wife and left a black and blue welt. The wife didn't object when the husband was arrested for spouse abuse. The officer observed four people at the scene of the event, two of these people being the Petitioner and his wife and the others the children. Having considered the testimony of the three witnesses who appeared at hearing, the officers account of what she observed after the incident and recount of what she was told at the scene is credited. The explanations by the Petitioner and his wife are not credited. This decision is reached in consideration of the demeanor of those witnesses, their motives for truth and veracity and the fact that they were not forthcoming in the explanation of the incident. Nor has the Petitioner been convincing in any suggestion that the circumstance of his plea of nolo contendere to the offense of battery related to the 1987 incident was under circumstances less than proper. Petitioner through his proof has failed to overcome the presumption created by the nolo contendere plea to the offense. Under the circumstances Petitioner has not shown sufficient rehabilitation to allow licensure following the revocation.
Recommendation Based upon the findings of fact and conclusions of law reached it is recommended that a final order be entered which denies Petitioner's application for class "D" and "G" licenses. RECOMMENDED this 8th day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2210 The following discussion is given concerning the proposed facts found in Respondents proposed recommended order. Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found with the exception of the second sentence which is rejected. Paragraph 7 is subordinate to facts found. COPIES FURNISHED: The Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse, General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 David B. Ferebee, Esquire Tassone and Ferebee 1833 Atlantic Boulevard Jacksonville, FL 32207 Henri C. Cawthon, Esquire Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
