Findings Of Fact Respondent was certified as a corrections officer in 1972 and was so certified at all times here relevant. Respondent was a season ticket holder to the Tampa Bay Buccaneers 1983 football games. He attended the game on September 25, 1983, with four friends. Before arriving at the game the group bought a fifth of whiskey. Respondent contends he had only one drink prior to the incident with the police officers but three police officers opined that Respondent was intoxicated. During the second half of the game, with the Bucs woefully behind and some spectators leaving the stadium, Respondent was yelling disparaging remarks about the Bucs and their performance on that day. Occasionally, Respondent was standing on his seat when he yelled the remarks. Respondent was more noisy than others in the section in which his seat was located and drew the attention of Jennifer Frye, a City of Tampa police officer serving as a uniformed off-duty policewoman paid the owners of the stadium to maintain crowd control. Officer Frye motioned for Respondent to come to the platform where she was standing, some four rows above Respondent's seat. Respondent did so, climbing between the people and seats behind him as he responded to Frye's summons. When Respondent reached Frye's position, she smelled alcohol on his breath and he appeared to her to be intoxicated. Respondent was somewhat annoyed in being called up by the policewoman and wanted to know why she had beckoned him from his seat. He was gesturing with his arms and asking what he had done wrong. Officer Lois Morraro, another off-duty member of the Tampa police force, was also working in uniform at the stadium. She observed Respondent respond to Frye's request and saw Respondent arguing. Morraro approached the two and positioned herself behind Respondent. Respondent told Frye he was a season ticket holder and was entitled to be upset when the Bucs were losing. Frye and Morraro decided to evict Respondent from the stadium and when Frye initially grabbed his hand Respondent pulled away. She then told him he was under arrest and grabbed his left arm and hand with a come-along grip. Morraro grabbed Respondent's right arm, twisted it behind his back, and moved the hand up toward the shoulders. They proceeded to propel the struggling Respondent down the steps to a holding area. When they reached the holding area they were joined by Sergeant Peter Ambraz, the off- duty Tampa police officer in charge of the stadium detail. Ambraz took Respondent's right arm while Morraro handcuffed Respondent. During this time Respondent was trying to keep from being handcuffed and in the process his elbow accidentally hit Morraro in the throat while she was standing behind him putting handcuffs on him. After Respondent had been handcuffed and taken to the police station, he revealed that he was a certified corrections officer. Respondent was subsequently tried for disorderly intoxication and fired from his job with the Hillsborough County Sheriff's Department.
Findings Of Fact At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043. On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time. The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine. Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence. The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine. The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself. Officer Goodwin was Respondent's fellow officer with the Miami Beach P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together. Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid. Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there. When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence. When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags. Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job. On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D. Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend. Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done. Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair. Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner. Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years. In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation. Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay. At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement. Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident. In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions. In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D. Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D. However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner. At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent. Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around. By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent. Petitioner filed the administrative complaint against Respondent on August 9, 1993. Respondent has no prior disciplinary action against him by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Placing Respondent on probation for one (1) year under terms and conditions that the Commission deems appropriate. DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300 Miami, Florida 33133-2749 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner has been repeatedly convicted of offenses against the criminal law, from vagrancy on December 31, 1958, to gambling on May 3, 1976. He has been convicted in the courts of three states on various charges, including assault and battery, aggravated assault and battery, carrying a concealed weapon, destroying city property, disturbing the peace, resisting arrest, battery on a police officer, non-support, possession of dangerous drugs and possession of marijuana. In addition, he was arrested for and charged with assignation and vagrancy; and posted bonds which were forfeited. According to a personal questionnaire petitioner filled out on March 16, 1978, petitioner is single; he has been employed at the same place since 1976; and he has lived at the same address since 1974.
Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent's teacher's certificate should be revoked pursuant to Section 231.28, F.S. A petition for the revocation of Respondent's teaching certificate was filed by the Vice-Chairman of the Petitioner on October 14, 1975. On October 28, 1975, Henry L. Kaye, Esquire, Hollywood, Florida, attorney for Respondent, filed an answer and other motions in behalf of Respondent. On December 16, 1975, the cause was noticed for hearing at North Palm Beach, Florida on January 14, 1976. The parties stipulated for an indefinite continuance on January 26, 1976. The matter was reset for hearing on November 19, 1976 and notice thereof was amended on September 27, 1976 for hearing to be held on November 18, 1976. On October 1, 1976, the Professional Practices Council relinquished jurisdiction over the cause and requested that a hearing officer from the Division of Administrative Hearings take cognizance of the matter. Accordingly, notice of hearing was furnished to counsel for both parties by the undersigned hearing officer on November 2, 1976, for a hearing to be held January 10, 1977 at West Palm Beach, Florida. On December 31, 1976, counsel for Respondent filed a motion to withdraw as attorney of record on the grounds that Respondent had not contacted him, had not complied with fee arrangements as agreed, and that he had been unable to contact the Respondent as shown on attached copies of letters addressed to the Respondent at various addresses. However, the aforesaid motion was not received by the hearing officer until a copy was presented to him by counsel for Petitioner on the date of hearing, January 10, 1977, at which time the motion was granted and the Petitioner was permitted to try the case as an uncontested proceeding, as authorized under Rule 28-5.25(5), Florida Administrative Code. (Composite Exhibit 1).
Findings Of Fact Respondent was employed by the Palm Beach County School System as a mathematics instructor at the Boca Raton Middle School in August, 1974. He presently holds Florida Teacher's Certificate Number 296746, Graduate, Rank III. (Petition, Testimony of Brake). The City of Boca Raton Police Department used plainclothes officers for a number of months in 1974-1975 to investigate the activities of suspected homosexuals who congregated in a wooded area near the beach in Boca Raton. During a period of about eight months, approximately 150 arrests had been made in the aforesaid area for various sexual and other crimes. Respondent had been observed on several occasions at the location in question and had been warned by police officers to leave the area because of the high incidence of crime there. During such encounters, Respondent had been variously observed perched in a tree wearing a "bikini" bathing suit and hiding in bushes. On May 19, 1975, a plainclothes police officer noticed the Respondent walking up a path in the area. The officer followed him and when they met, Respondent started conversing with the officer. He then moved his leg against that of the officer and stated "we have to be careful, there are lots of cops around. If you were a cop, you would arrest me for this" or words to that effect. The Respondent then grabbed the officer in the genital area at which time the latter produced his identification and arrested the Respondent for assault and battery. He was taken to the police station, warned of his rights, and in a voluntary statement admitted that he was a homosexual. He further stated that he had never molested any of the children at the school where he was employed as a teacher. (Testimony of Collins, Palmisino). On May 27, 1975, Respondent pleaded nolo contendere to a charge of assault and battery in violation of F.S. 784.O3 in case number 75-4876 in the municipal court, City of Boca Raton, Florida. He was found guilty of the offense and sentenced to pay a fine of $150.00 and ten days in jail. The period of confinement was suspended. (Exhibit 2). Respondent resigned from his employment with the Palm Beach County School System, effective June 29, 1976. During his period of employment he had been a good teacher and there had been no prior reports of misconduct. He had previously been employed at Florida Atlantic University during the period 1972- 72 and Nova University from 1972 to 1974. (Testimony of Brake).
Recommendation That the teaching certificate of Respondent Bruce Joseph Feichtner be revoked permanently under the authority contained in Section 231.28, Florida Statutes. DONE and ENTERED this 26th day of January, 1977, in Tallahassee, Florida. Thomas C. Oldham Hearing Officer Division of Administrative Hearings COPIES FURNISHED: Thomas W. Benton, Esquire Room 3, 319 W. Madison Street Tallahassee, Florida 32304 Michael E. Jackson, Esquire 3323 Belvedere Road, Room 109 West Palm Beach, Florida Mr. Bruce J. Feichtner 482 S. W. 9th Street Boca Raton, Florida Room 530, Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: BRUCE JOSEPH FEICHTNER DOAH CASE NO. 76-1788 /
Findings Of Fact Respondent, Glen Thurlow (Thurlow), was certified by the Criminal Justice Standards and Training Commission (Commission) on June 15, 1982, and was issued Certificate Number 02-3128. Thurlow has been employed by the West Palm Beach Police Department (WPBPD) for the last eight years. On the evening of November 24, 1990, Thurlow was assigned as a police officer to the WPBPD Criminal Apprehension Team (CAT), which is a street crimes unit. That evening Thurlow was partnered for the first time with Lee Rollins (Rollins), a fellow police officer on CAT. Thurlow and Rollins were assigned as plain clothes officers in an unmarked police vehicle, an old, gold Cadillac. Thurlow had on a black T-shirt, combat pants, black combat boots, duty leather and underneath his shirt a bullet-proof vest with a trauma plate. Rollins was dressed in a black T-shirt and jeans. He was not wearing duty leather, but was wearing a utility belt fastened with velcro. Both officers wore their police badges on a chain underneath their shirts. Around 10:30 p.m., near the end of their duty shift, they were returning to the police station. Thurlow was driving south on South Dixie Highway headed toward the Belvedere Road intersection. As they approached the intersection, the officers saw a man, later identified as Robert Jewett (Jewett), dressed in cut-off jeans, a T-shirt, and a cap standing near the middle of the south bound lanes on South Dixie Highway past the Belvedere Road intersection, near the Palm Beach Post Building. The officers continued through the Belvedere Road intersection toward Jewett. As they approached Jewett, he stuck out his left hand in a "hitchhiking gesture." Thurlow pulled over to the side of the road near the parking lot of the Palm Beach Post Building. When Thurlow pulled over, Jewett ran up to the car and got in the back seat. Rollins showed Jewett his police badge, told Jewett that he was a police officer, and requested Jewett to step outside the car. Jewett complied. Rollins exited the Cadillac and Thurlow remained inside. Rollins asked Jewett for his driver's license, which Jewett gave him. Rollins radioed the police dispatcher with the information on the driver's license in order to determine whether there were any outstanding warrants on Jewett. Rollins advised Jewett that he was going to charge him with hitchhiking, but that if there were no warrants against Jewett that he would be given a Notice to Appear and released at the scene, rather than being taken down to the police station. Rollins told Jewett to place his hands on top of the car and spread his legs so that Rollins could search him for weapons. Jewett complied. Thurlow, still sitting in the driver's seat, was monitoring the conversation between Rollins and Jewett. Rollins began the weapons search at Jewett's shoulder and continued down to his left pocket. Finding nothing, he started to search the right pocket. At that time Jewett brought his right arm down from the top of the car. Rollins caught his arm, put it back on top of the car, and told him to keep his hands on the top of the car. As Rollins proceeded to search Jewett's right pocket, Jewett brought his right arm down and stuck it in his pocket. At the same time he came around with his left elbow and hit Rollins on the left side of his chest, knocking him around. Rollins pulled Jewett's hand out of his pocket and they began to struggle. Rollins pulled his flashlight from his back pocket and tried to hit Jewett on his left forearm. Jewett tried to kick Rollins in the groin and Rollins grabbed Jewett's T-shirt. Their feet tangled, the men went down and Rollins fell back toward the car, hitting his head on the back door. Rollins was stunned from the blow to his head. Thurlow felt the Cadillac rock as if someone had bumped against the car. Rollins called to Thurlow to give him some assistance. Thurlow exited the car and came around to the passenger side, where he saw Rollins sitting on the ground with his back to the car, and Jewett straddling and leaning over Rollins with his arms raised as if he were preparing to hit Rollins. Thurlow ran up behind Jewett and put his arm below Jewett's Adam's apple in Jewett's upper chest area in order to pull Jewett back from Rollins. Jewett began to fight and had Thurlow on the balls of his feet. They went towards the front of the car. Jewett went down on his knees with Thurlow's arm still around him. Jewett stood up with Thurlow on his back and they both went backwards, and as a result Thurlow's arm slipped up towards Jewett's chin. Rollins, seeing Jewett put his right hand in his pocket, ran over to Jewett and tried to grab his right hand. The three men fell to the ground and rolled backwards landing in a grassy area. Thurlow still had his arm around Jewett's neck. Thurlow was on the bottom, Jewett in the middle and Rollins on top. Thurlow released his hold on Jewett and slipped out from under Jewett. Thurlow was on Jewett's left side and Rollins was sitting to Jewett's right, about, waist-high facing away from Jewett. Jewett was grabbing at his right pocket. Rollins saw a metal object in the area of Jewett's right pocket. Rollins took his flashlight and swiped at the metal object, sending both the flashlight and the metal object flying off in an easterly direction. Rollins told Jewett to quit struggling. Jewett grabbed the butt of Rollins' gun. Rollins hollered to Thurlow that Jewett had his gun. Rollins hit Jewett in the groin three to four times. Thurlow got up and threw a punch at Jewett connecting at Jewett's left eye. At that point Jewett quit fighting. Thurlow held Jewett's arm over the curb and told Rollins to handcuff Jewett. Having lost his handcuffs in the struggle, Rollins used Thurlow's handcuffs and cuffed Jewett's hands behind his back. All three men were breathing hard and sweating. Rollins told Thurlow that he had lost his flashlight and that something had been thrown out of Jewett's hand during the struggle. Thurlow left Rollins with Jewett and went to look for the lost items. At the time Thurlow left Rollins and Jewett, Jewett was breathing. During the struggle, Rollins' handcuffs, radio, and ammo pouch came off his belt. Rollins found his radio and called the dispatcher at 22:35:52 hours to report the incident. He then went to look for the rest of his missing equipment and was gone approximately one to one and a half minutes. Rollins returned to Jewett and started to pick him up; however Jewett was limp. Rollins put him back on the ground and tried to take his pulse. Because Rollins was still in an excited state from the fight, he could not tell whether he was getting a pulse from Jewett. He tried to take Jewett's pulse again but still could not determine whether he was getting a pulse. Thurlow, having found the flashlight in the grass and an open pocketknife on the sidewalk, walked back over to Rollins and Jewett. Thurlow asked Rollins if something was wrong with Jewett, and Rollins replied that Jewett did not look well. At 22:39:54 hours Thurlow radioed for the paramedics. At 22:43:35 hours, Thurlow again radioed for the paramedics to hurry and get to the scene. Rollins again checked for a pulse but could not determine whether there was a pulse. A few minutes later firefighters, responding to a medical call, arrived on the scene. One of the firefighters checked Jewett's pulse and breathing and determined that Jewett was not breathing and did not have a pulse. Jewett was pale with some discoloration and swelling about the face. Within several seconds, the rescue team arrived. The rescue team got Jewett uncuffed and began to administer advanced life support. Jewett was transported to a hospital where he was pronounced dead. Both Thurlow and Rollins were trained to administer CPR; however the unmarked police vehicle did not contain rubber gloves or a bag which are used in administering CPR to protect the person administering CPR from diseases such as AIDS which could be transmitted by bodily fluids. Additionally, Jewett appeared to be breathing, which would mean that he was not a candidate for CPR. At the time of the incident, Joseph Huffman and his girlfriend were traveling north on South Dixie Highway in a van. The van had windows on the rear doors and on the passenger and driver doors. As Mr. Huffman approached the Palm Beach Post parking lot, he saw two men scuffling on the hood of the gold Cadillac. He began to slow down to watch the fracas. He observed the fight for approximately 20 to 30 seconds, during which time he looked over to the El Cid Bar to see if anyone was watching. His girlfriend observed that Huffman tried to look at the fight through his side mirror but couldn't see so he stuck his head out the driver's window and glanced back once or twice, looking forward to check the approaching traffic. Huffman recalled seeing a third man strike Jewett at least 20 times in the groin with a flashlight; however the medical evidence does not support Mr. Huffman's assertion. Having judged the credibility of the witness, I find that Mr. Huffman's recollection is not credible. An autopsy was performed on Jewett by the Palm Beach County Medical Examiner, Dr. James Benz. The autopsy revealed that Jewett had a black eye, markings on the forehead and neck area, minor bruises and abrasions on the right forearm, abrasions on the knees, and abrasions on the right wrist. Jewett suffered fractured ribs and bruising of the left lung underlying the rib fractures. There was a "blow out" of the heart. There was hemorrhaging underneath the Adam's apple and an irregular fracture in the lamana below the Adam's apple. The hyoid bone, which sits above the voice box, was fractured. There were no injuries to the upper thighs, penis or lower abdomen. There was a mild bruise in the testicle area and hemorrhaging in the left testicle. The injuries to the testicles are not consistent with Jewett's being hit between 10 to 20 times with a flashlight in the groin. The "blow out" of Jewett's heart is called a cardiac tamponade. Most probably as a result of the impact to Jewett's chest when he, Rollins, and Thurlow fell to the ground, a thin area of Jewett's heart blew out forming a small hole in Jewett's heart. The heart pumped blood through the small hole into the pericardial sac. As a result of the blood flowing into the pericardial sac, the heart could not expand and death occurred. The cardiac tamponade did not occur after Jewett died nor did it occur in a peri-mortem, near-death state. The cardiac tamponade did occur while Jewett was alive and death occurred some time later. Based on the testimony of Dr. Charles Petty, an expert in forensic pathology, I find that the injuries to Jewett's neck occurred as a result of forceful application of force to the neck, which is consistent with a fall across a rounded object such as a forearm rather than police carotid holds and choke downs. The Use of Force Matrix from the Florida Department of Law Enforcement is the state standard concerning the use of force by law enforcement officers. The matrix lists the resistance levels of a subject and indicates the appropriate level of force to be used by an officer in responding to the various levels of resistance. An aggressive physical resistance is defined as overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. Aggravated physical resistance is when the subject makes overt, hostile, attacking movements with or without a weapon, with the intent and apparent ability to cause death or great bodily harm to the officer or others. The resistance level of Jewett when he was straddled and leaning over Rollins as Rollins was up against the fender of the Cadillac and Jewett's actions at the front of the car with Thurlow constitutes aggressive physical resistance. The matrix guidelines indicate that an officer may use all levels of force with the exception of deadly force in dealing with aggressive physical resistance. When Thurlow grabbed Jewett from behind to remove Jewett from his position of standing over Rollins, Thurlow was not using deadly force. His arm was not under Jewett's chin but was lower, nearer the upper chest area. The resistance level of Jewett when he was trying to get Rollins' gun constitutes aggravated physical resistance. The matrix guidelines for force to counter aggravated physical resistance include among other things, counter moves, incapacitation, and deadly force. Deadly force includes techniques that may result in imminent or serious injury, unconsciousness or permanent disfigurement, such as impact weapon strikes to the head or use of firearms. Thus, Thurlow's punch to Jewett's face was within the matrix guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against Respondent, Glen H. Thurlow. DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2593 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance with the exception of the word "allegedly" which is rejected. The second sentence is accepted in substance. Paragraphs 10-12: Accepted in substance. Paragraph 13: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 14: Accepted in substance. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance; however it should be noted that it appeared to Thurlow that Jewett was about to strike Rollins. Paragraph 17: The first and second sentences are rejected as not supported by the greater weight of the evidence. The evidence established that Thurlow jumped across Jewett's back, placing his arm across Jewett below Jewett's Adam's apple. The second sentence is accepted in substance. Paragraph 18: Accepted that Thurlow and Jewett continued to struggle. Rejected that Thurlow continued to maintain a choke hold on Jewett. The greater weight of the evidence established that Thurlow's arm did not slip up under Jewett's chin until Jewett and Thurlow began to fall backward. Paragraph 19: Rejected as not supported by the greater weight of the evidence. Paragraph 20: Accepted in substance with the exception of "continued to hold Mr. Jewett in a choke hold." The evidence established that Thurlow's did not have a choke hold on Jewett until they fell backwards and that the choke hold was not an intentional action but rather resulted from the struggle between Jewett and Thurlow and Rollins running into them. Paragraph 21-22: Accepted in substance. Paragraphs 23: Accepted in substance except to the extent that such finding implies that Thurlow had a choke hold on Jewett at the time that Huffman saw them. Paragraphs 24-26: Having judged the credibility of the witnesses, I find that Huffman's testimony concerning the repeated striking of Jewett in his groin not to be credible, particularly considering the medical evidence and the fact that Huffman was driving down the street while he was trying to look at the fight and keep track of traffic both in front of and behind him. Paragraph 27: Rejected as not supported by the greater weight of the evidence. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as not supported by the greater weight of the evidence. Paragraph 30: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett the entire time that they were struggling. The evidence established that Thurlow did not start out with a choke hold but that during the struggle, Thurlow's arm slipped underneath Jewett's chin. Paragraphs 31-35: Accepted in substance. Paragraph 36: Accepted in substance to the extent that at one point in time while Jewett was supine on the ground his head was turned toward Thurlow and he grabbed Thurlow's shirt but rejected to the extent that it implies that during the entire time Jewett was on the ground he was looking at Thurlow and grabbing Thurlow's shirt. Paragraph 37: Accepted in substance. Paragraph 38: Accepted in substance to the extent that Thurlow did hear Rollins shout that Jewett had grabbed his gun and to the extent that Thurlow did not see Jewett actually grab the gun. Rejected to the extent that the word "claiming" implies that Rollins may not have shouted to Thurlow that Jewett had his gun and rejected to the extent that the last part of the sentence could be construed to mean that Thurlow did not see Jewett's right arm reach in the direction of Rollins' holster. Paragraphs 39-40: Accepted in substance. Paragraph 41: Accepted in substance with the exception of the word "allegedly." Paragraphs 42-45: Accepted in substance. Paragraph 46: The portion relating to rendering medical assistance is accepted in substance. The portion relating to never checking on the well being of Jewett is rejected as not supported by the evidence. Thurlow did inquire of Rollins concerning the condition of Thurlow before he called for the paramedics. Paragraph 47: Accepted in substance. Paragraph 48: Accepted in substance to the extent that Rollins did not render any first aid but rejected to the extent that Thurlow always had an unobscured view of Jewett. The evidence established that Thurlow was looking for the knife and the flashlight during a portion of the time . Paragraph 49: Rejected as constituting a conclusion of law. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-53: Accepted in substance. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: Rejected as not supported by the greater weight of the evidence. Paragraph 56: Accepted in substance. Paragraphs 57-59: Rejected as subordinate to the facts actually found. Paragraphs 60-73: Rejected as unnecessary. Paragraph 74: Accepted in substance to the extent that Jewett was lying on the ground, was bloody, and was not moving. In light of the testimony of Mr. Cook that Jewett's skin was pale and there was discoloration about his face, I do not find Mr. Bouchillion's testimony that Jewett was turning blue to be credible. Paragraph 75: Accepted in substance. Paragraphs 76-77: Rejected as subordinate to the facts actually found. Paragraphs 78-86: Accepted in substance. Paragraphs 87: Rejected as not supported by the greater weight of the evidence. Paragraph 88: Accepted in substance. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-96: Accepted in substance. Paragraph 97: Having considered the opinions of Dr. Benz and Dr. Petty, I reject the finding to the extent that it implies that the fractures resulted from a choke hold applied prior to Thurlow, Jewett, and Rollin falling down and rolling into the grassy area. Paragraph 98: The first sentence is accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. Paragraph 99: Accepted in substance. Paragraph 100: Rejected as not supported by the greater weight of the evidence. Paragraphs 101: Rejected as subordinate to the facts actually found. Paragraph 102: Rejected as subordinate to the facts actually found. Paragraph 103: Rejected as unnecessary. Paragraph 104: Accepted in substance. Paragraphs 105-109: Rejected as subordinate to the facts actually found. Paragraph 110-111: Accepted in substance. Paragraph 112: Rejected as subordinate to the facts actually found. Paragraph 113: Accepted in substance. Paragraph 114: Rejected as subordinate to the facts actually found. Paragraph 115: Rejected as unnecessary. Paragraphs 116-117: Rejected as subordinate to the facts actually found. Paragraph 118: Rejected as not supported by competent substantial evidence. Paragraph 119: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett from the time there were at the rear of the Cadillac until they fell backwards. The evidence established that Thurlow did not have Jewett in a choke hold when Thurlow grabbed Jewett from behind. Paragraph 120: Rejected as constituting argument. Paragraph 121-125: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 2-3: Rejected as subordinate to the facts actually found. Paragraph 4: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance. The portion of the second sentence relating to Thurlow being able to hear is accepted but the portion that Thurlow could see everything is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance to the extent that Thurlow thought that he needed to monitor the traffic but the greater weight of the evidence established that the Cadillac was not in the lane of traffic while it was parked. Paragraphs 10-27: Accepted in substance. Paragraph 28-30: Rejected as unnecessary. Paragraph 31: Accepted in substance. Paragraph 32: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Gene "Hal" Johnson, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400 250 Australian Avenue, South West Palm Beach, Florida 33401-5012 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent held a certificate as a law enforcement officer from June 15, 1979 through October 1, 1983. This certificate is currently inactive. At all times relevant herein, Respondent was employed in a law enforcement capacity with the Pompano Beach Police Department. On October 2, 1981, Respondent, who is black, filed a memo with the Chief of the Pompano Beach Police Department, alleging harassment of black officers and mistreatment of prisoners by police supervisors. Respondent also described an alleged beating by police in an incident which occurred on June 8, 1981. The June 8 incident came to Respondent's attention weeks later in a casual conversation with a Mr. Phillip Robinson who had witnessed the incident and described it to Respondent. Respondent, in turn, reviewed the files and found no "use of force" report which led him to conclude that the incident had been covered-up. At Respondent's urging, Robinson came forward and gave his statement to the Pompano Beach Police Department regarding this incident. An investigation of this incident and Respondent's other allegations was conducted by the department. Their findings and conclusions differed substantially from those of Respondent. Contrary to Respondent's contention, a use of force report had been filed. Also, Robinson did not actually see the police strike the detainee on the head nor did he observe six blows as related by Respondent. It must be recognized that Respondent was urging an investigation and did not intentionally misrepresent facts which he himself sought to have determined through such investigation. However, Respondent's accusations of police brutality, official cover up, and racial harassment were at best premature, where, as with the June 8 incident, he was neither a witness nor the designated investigator. The second incident on which evidence was presented arose when Respondent reported for reassignment as a "teleserve officer" on December 27, 1982. Respondent had been contacted at home and verbally told to report to Captain Sullivan at 11:00 a.m. for the new assignment. Sullivan observed Respondent outside his office shortly after 11:00 a.m. and directed him to come into the office to discuss his new duties. Respondent refused to come in stating that he had to go to the bathroom. Shortly thereafter he did return and enter Sullivans' office. An argument which involved shouting heard by other employees ensued, and Sullivan thereupon suspended Respondent and temporarily relieved him of duties. Respondent was in a guarded state of mind when he reported to Captain Sullivan. He had previously been under psychological evaluation on order of the department and had only three days previously filed several memos accusing police officials of racial harassment and requesting an investigation. Without Sullivan's knowledge, Respondent recorded that portion of the conversation which took place inside Sullivan's office. A transcript of this conversation revealed that Respondent was prepared to accept his new assignment, but believed that it was a desk job created to harass him. Respondent made several accusations of harassment which apparently angered Sullivan, resulting in a loud and angry exchange. Respondent established through the testimony of the former city personnel director and coworkers at the Pompano Beach Police Department that he was targeted for firing by police supervisors who wanted to get rid of him. This testimony also established that Respondent was a capable patrolman who had been commended for outstanding police work by both the department and members of the public.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the charges contained in its Administrative Complaint. DONE and ENTERED this 26th day of November, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Charles T. Whitelock, Esquire Department of Law WHITELOCK and MOLDOF Enforcement 1311 Southeast Second Avenue Post Office Box 1489 Ft. Lauderdale, Florida 33316 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 12489 Tallahassee, Florida 32302
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he used his law enforcement badge and credentials to misrepresent himself as acting in a formal law enforcement investigative capacity, when he was actually engaged in a private matter. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by the parties Respondent David A. Thomasun (hereafter "Thomasun") holds auxiliary law enforcement certificate number 01-6739, issued by the Criminal Justice Standards and Training Commission on October 16, 1979, and holds law enforcement certificate number 03-84-002-03, issued by said Commission on November 5, 1984. On June 27, 1988, at approximately 6:30 p.m., Thomasun entered the Broward General Medical Center for the purpose of photographing an individual named Phillip Ambrose, who, unknown to Thomasun at the time, had shortly before been arrested by the Pompano Beach Police Department, and subsequently had been taken to the Medical Center by the Pompano Beach Police for further examination. Thomasun was then an auxiliary special agent with the Florida Department of Law Enforcement, but was not on duty at the time he entered the Medical Center. He had not been authorized or requested by the Florida Department of Law Enforcement (FDLE), the Pompano Beach Police Department, or any law enforcement agency to photograph Ambrose for any purpose. Thomasun had been hired by a personal injury attorney to take photographs of Ambrose, who was the attorney's client, at the Medical Center. Thomasun had no reason for being in the Medical Center other than to take said photographs for said attorney. Thomasun approached Pompano Beach Police Officer Scott Winters, who was guarding Ambrose, and after Officer Winters searched his camera bag and his pockets, and viewed other personal identification such as his driver's license, Thomasun displayed to Officer Winters his FDLE auxiliary special agent credentials, consisting of a black leather case containing two identification cards, one with a photograph, and a badge attached and visible on the exterior of the case. Said credentials identified Thomasun as an auxiliary special agent with FDLE. Shortly afterward, Officer Winters left the immediate area to make some telephone calls, without permitting Thomasun to take any photographs of Ambrose. Thomasun then departed without taking any photographs. On the following day, June 28, 1988, Thomasun related his account of the incident of the preceding day to his immediate supervisor, Special Agent Joyce Dawley, and to Assistant Chief of Regional Operations Harry Solowsky and Special Agent Supervisor George Vilardi. Thomasun was terminated from his position as auxiliary special agent with FDLE on June 28, 1988. Facts established by evidence at hearing Thomasun's termination from his position as an auxiliary special agent with FDLE was based on the information gathered by FDLE du ring the course of its investigation of the incident on June 27, 1988, at Broward General Medical Center. 2/ Thomasun's stated purpose for going to the hospital room on June 27, 1988, constituted, by his own admission, a direct conflict of interest with his duties as an auxiliary law enforcement officer. Shortly after realizing that the situation in the hospital room represented a conflict of interest, Thomasun left the hospital room. At all times material to this proceeding, auxiliary special agents of the FDLE were subject to the provisions of Procedural Order 87-2. Section I.C. of that procedural order read as follows: FDLE auxiliary special agents are authorized to function as regular law enforcement officers only during specific tours of duty and investigative situations. When off duty, the auxiliary special agent may only act in the capacity of a private citizen. Auxiliary special agents can only function as regular law enforcement officers when under the direct control and supervision of a full-time special agent of the Florida Department of Law Enforcement. Section VI.A.3. of Procedural Order 87-2 read as follows: Although the display of credentials will only be permitted while in an on-duty status in the company of a full-time sworn agent, the auxiliary special agent will be permitted to keep his/her credentials while in off-duty status provided they do not display or attempt to exercise official powers unless in an on-duty status. Thomasun was thoroughly familiar with the above-quoted provisions of Procedural Order 87-2.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Administrative Complaint. DONE and ENTERED this 2nd day of March 1992, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1992.
