The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, John Hawks (Hawks), has been employed by the County as a correctional officer since February 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hawks. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hawks had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hawks and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hawks has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, John Hawks, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK 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 20th day of June, 1989.
Findings Of Fact The Respondent, Willie A. Owens, was certified by the Criminal Justice Standards and Training Commission on April 27, 1984, and was issued Certificate Number 02-84-002-01. In February, 1985, the Respondent was employed in a training position as a Highway Patrol Officer and had been in that position for about twelve months in February, 1985. T. 64. On the evening of February 10, 1985, the Hillsborough County Sheriff's Officer initiated an investigation into a complaint of involuntary sexual battery alleged to have been committed by the Respondent on February 9, 1985. T. 9-10, 24, 13. (The Respondent has not been charged with this offense in this case.) Pursuant to that investigation, between the hours of 12:30 and 1:30 A.M. on February 11, 1985, Detective David Gee, Hillsborough County Sheriff's Office, accompanied by Lieutenant P. E. Dixon, Florida Highway Patrol, Lieutenant Maxwell, and others, drove to the residence of the Respondent. T. 10, 25. The Respondent came to the door fully dressed and was reasonably alert. T. 18-19. The Respondent was asked if the group could come inside his residence, and he invited them in. T. 25. After the group was inside, Detective Gee stated that the Respondent was a suspect in a sexual battery case. T. 25, 65, 11. Detective Gee then advised the Respondent of his rights pursuant to the Miranda requirements. T. 25, 11-12. The Respondent signed a waiver of rights form and consented to be questioned at that time, and did not ask to have a lawyer present. T. 11-12. During the interview inside, the Respondent and Detective Gee were sitting on a couch. T. 15. The Respondent said that he had had a female companion (the alleged victim) in his home on the night of February 9, 1985, (he was not on-duty) and that she had produced some marijuana that she had brought with her to the Respondent's home. T. 14-15. The Respondent said that he and she smoked two marijuana cigarettes, characterized in this record by one law enforcement witness as a small amount of marijuana. T. 14-15, 29. Detective Gee then looked into an ashtray that was directly in front of him on a coffee table in front of the couch and saw the end of one used marijuana cigarette. T. 15. He asked the Respondent if that were part of the marijuana and the Respondent said yes, it was. T. 15. The used bit of marijuana was very small, the cigarette having been burned all the way to the end of the paper. T. 16-17. There was only one used marijuana cigarette in the ashtray. T. 15. (There is a conflict of testimony as to whether there were one or two remains of marijuana cigarettes in the ashtray. Detective Gee is credited with the more reliable memory of what was in the ashtray since he was the one who took the substance into custody.) Detective Gee then seized the bit of marijuana, which was in his plain view. T. 17. He did not have a search warrant. T. 33. The bit of substance seized by Detective Gee was cannabis or marijuana. T. 15, 16-17, 26-29. Detective Gee had permission to search the residence of the Respondent, but there is no evidence that the Respondent had any other marijuana or any other controlled substance in his possession. T. 34-35, 36-37, 66-67. Detective Gee did not have the substance analyzed to determine chemically if it was cannabis because he did not intend to charge the Respondent with a crime. T. 22. The authorities did not charge the Respondent with any crime connected with the substance found in the ashtray. T. 19-20. The Respondent had possession of the bit of marijuana seized by Detective Gee because he knew what it was and it was under his control and possession in his home, and his female companion was no longer there. Additionally, the Respondent possessed and consumed some small portion of marijuana provided to him by his female companion on February 9, 1985. The record does not contain precise evidence as to the amount, but it may be inferred from the visual evidence and testimony that the amount was substantially less than 20 grams. A law enforcement officer has a duty to enforce laws forbidding the possession and use of controlled substances. T. 30. A Highway Patrol Officer normally is assigned alone in a car, without direct supervision. T. 30-31. Such an officer may, on occasion, have a duty to seize controlled substances and destroy the same if a charge of illegal possession or use is not to be filed. T. 32. Saving the controlled substance for personal use would be a violation of that duty. Id. In such event, it is likely that there would be little complaint from the motorist from whom the controlled substance was seized. There have been no complaints concerning the work performed by the Respondent while employed by the Highway Patrol. T. 33. He is considered to be honest and trustworthy by reputation. T. 59-60.
Recommendation For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order finding that the charge of a lack of good moral character has not been proven, that the law enforcement certificate issued to the Respondent, Willie A. Owens, not be revoked, and that the administrative complaint be dismissed. DONE and RECOMMENDED this 27th day of April, 1987 in Tallahassee, Florida. 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 27th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4141 The following are rulings upon proposed findings of fact; by number, which have been rejected in this recommended order. Findings of fact proposed by the Petitioner: 4-5. It appears that the Respondent was advised of the purpose of the visit after the group had entered, but the fact is not important to the result in the case. 8-9. It is true that both Detective Gee and Lieutenant Dixson have had significant experience in the identification of cannabis, but the proposed finding is subordinate. 9. The testimony of Detective Gee, that the remains of only one cigarette was in the ashtray, is adopted in this recommended order. 11. Rejected as not credible. Findings of fact proposed by the Respondent: Two cigarettes were involved initially. While possession originated with the Respondent's companion, the Respondent then also possessed the cannabis. Rejected as not credible and contrary to the evidence. 8-9. The testimony of the Respondent (admission), Lieutenant Dixson, and Detective Gee was sufficient to establish the character of the substance as cannabis. 10. The evidence cited to support this proposed finding concerning an act of bravery has been ruled inadmissible. COPIES FURNISHED: Rod Caswell, Director Criminal Justice Standards Training Commission 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 Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Marvin P. Jackson, Esquire 400 East Buffalo Avenue, Suite 110 Tampa, Florida 33603 =================================================================
Findings Of Fact On May 27, 1975, the Public Employees Relations Commission certified the Petitioner as the exclusive presentative for the purpose of collective bargaining for a unit of employees of the City of Riviera Beach. All issues respecting the appropriate collective bargaining unit were resolved by the Commission in its order, except that no determination was made as to whether police lieutenants should be included in the unit. There are a total of approximately 67 sworn personnel in the City of Riviera Beach Police Department. The Chief of Police and the Inspector of Police are of the top management officials. There are three police captains, six police lieutenants, and thirteen police sergeants. The department is divided into four divisions: Uniform Division, Detective Division, Records Division, and the Services Division. Until approximately four years ago, the divisions were headed by police lieutenants. At that time the rank of captain was created. Captains are regularly charged with heading the Uniform Division, the Detective Division, and the Records Division. Due to the illness of the captain who formerly headed the Uniform Division, a lieutenant is in charge of the Uniform Division, and the captain who formerly headed the Uniform Division now heads the Services Division. Lieutenants are charged with the command of units within the divisions. Lieutenants are in charge of each of the three regular shifts and of the relief shift within the Uniform Division. A lieutenant is in charge of the 4:00 P.M. to midnight shift in the Detective Division. Ordinarily a lieutenant heads the Services Division. A lieutenant in the Uniform Division will have from ten to eleven sworn officers under his command. The lieutenant in the Detective Division will have approximately four sworn officers under his command. The lieutenant who heads the Services Division will have one sworn officer under his command. Between the hours of 5:00 P.M. and 8:00 A.M. on weekdays, and on weekends, lieutenants in the Uniform and Detective Divisions are the highest ranking on-duty employees of the Police Department. The qualifications, duties, and responsibilities of police lieutenants are described in Respondent's Exhibits 5 and 6. Lieutenants in the Uniform Division spend the bulk of their work day on the road in patrol cars. They serve as backup units to other patrol cars, and act in a supervisory capacity. Lieutenants make arrests for traffic violations, but they generally do not make as many arrests as lower ranking officers. Lieutenants in the Uniform Division wear the same uniform as police captains, except that they were lieutenants bars on the shoulders of their shirts rather than captains bars. Lieutenants and captains wear white shirts and brown slacks. Police sergeants and lower ranking officers wear brown slacks and shirts. Police lieutenants play limited policy making and budgetary roles. Lieutenants are expected to make recommendations to captains respecting policy making needs. Lieutenants occasionally meet as a group with captains, the Chief of Police, and the Inspector of Police. During these staff conferences proposed policies are discussed and final policies ultimately may be adopted as a result of the meetings. Lieutenants do not have the authority to promulgate policy either individually or as a group. Their role is limited to proposing and discussing policies. The lieutenant's budgetary role is similar. Lieutenants are expected to advise captains and other superior officers of the budgetary needs of their units. Lieutenants have no authority to make binding budgetary recommendations, and have no role in promulgating a final proposed budget for consideration of the City Commission of the City of Riviera Beach. Lieutenants play no part in hiring new employees. Unless serving as an acting captain, a lieutenant would not interview job applicants, and would have no input into hiring decisions. Lieutenants do not have final authority to promote, transfer, or discharge employees. Lieutenants do make recommendations respecting promotions, transfer, and discharge. with respect to promotions, the views of the police lieutenants would be solicited, and are given great weight. Employee evaluation reports are used to evaluate probationary personnel, and permanent employees. These reports are prepared by lieutenants and reviewed by the captain. Probationary employees may be rejected for permanent status based in part on these reports, and permanent employees may be denied promotions based in part upon these reports. The evaluations are also used to determine whether employees should get step increases. Captains make recommendations for promotion to the Police Chief based upon the lieutenant's evaluation. A lieutenant makes recommendations to the captain respecting transfer or discharge of an employee. These recommendations are given some weight, but are not always followed. A lieutenant to the Uniform Division assigns the officers in the division to their jobs on a daily basis. This duty may be delegated to a police sergeant; however, the responsibility lies with the lieutenant. A lieutenant is responsible for the work performance of personnel under this command. Lieutenants can discipline employees by taking such action as removing the employee from duty for the remainder of a shift. The lieutenant must then, as soon as possible, submit a full report to the captain, who will forward it to the Inspector of Police and to the Chief. Lieutenants can make recommendations to their superior officers respecting discipline of employees under their supervision, but only the City Manager has ultimate authority to suspend an employee. Lieutenants serve as the first step in the city's formal grievance procedure; however, the police captain must approve any affirmative action taken by the lieutenant. Two police lieutenants testified at the hearing that they do not wish to be part of a collective bargaining unit with lower ranking police officers. The testimony of one witness was based upon his feeling that it would be more difficult for him to carry out his job under those circumstances. The testimony of another lieutenant was based upon his personal dislike for labor unions. Two other police lieutenants signed affidavits stating their preference to be included in the "Management Group" of the city. No basis was given for these statements. ENTERED this 18th day of February, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Curtis L. Mack, Chairman Public Employees Relations Commission Suite 105, 2005 Apalachee Parkway Tallahassee, Florida 32301 Irving Weisoff, Esquire Suite 804, Roberts Building 28 W. Flagler Street Miami, Florida Nicholas P. Wellman, Esquire 4655 S. Military Trail Lake Worth, Florida 33460
The Issue Whether Respondent, a certified law enforcement officer, committed the violations alleged in the Second Amended Administrative Complaint dated February 21, 1991, as further amended by order issued March 11, 1992, and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner is the agency of the State of Florida that is responsible for the certification of law enforcement officers. The Respondent was certified by the Criminal Justice Standards and Training Commission on February 27, 1981, and was issued certificate number 02-27492. VERBAL THREATS TO OFFICER LINDQUIST ON JANUARY 15, 1986 In January 1986, Officer Barry Lindquist was working as a shift Lieutenant with the Pompano Beach Police Department (PBPD). Respondent was one of the police officers assigned to Officer Lindquist's shift. At the time he gave his deposition in this proceeding, Officer Stanley Tipton was the Chief of Police for Pompano Beach. In January 1986, Officer Tipton was a sergeant with the PBPD. On January 15, 1986, Respondent called in sick and did not report to work. Officer Lindquist asked Officer Tipton to go over to Respondent's house to check on his welfare. Officer Tipton called the Respondent's house before leaving the police station for the house and spoke to a man (someone other than Respondent) and then to a woman. He advised that he was coming to check on Respondent. Officer Tipton arrived at Respondent's house at approximately 7:45 p.m. Officer Tipton was greeted at the door by a young man who asked him to come in. He stepped inside the doorway and asked for the Respondent. The young man proceeded to the rear of the house, and the Respondent subsequently appeared in the hallway. Respondent had on a pair of pants, but no shirt, and he started walking toward Officer Tipton. Officer Tipton observed a firearm sticking out of Respondent's waistband and, because he had become apprehensive, stepped backwards. Respondent recognized Officer Tipton and said "It's a good thing it was you Tipton, 'cause if it was Lindquist, I would have shot him." After Respondent got closer to Officer Tipton, he repeated his threat two additional times and continued to express his anger toward Officer Lindquist. Officer Tipton was of the opinion that Respondent was serious about the threats he had made against Officer Lindquist and that he was angry that Officer Lindquist had sent Officer Tipton to check on him. Officer Tipton observed that Respondent's eyes were bloodshot, his speech was slurred, and his balance impaired. Officer Tipton was of the opinion that Respondent had been drinking. Officer Tipton talked to Respondent, saying that the Respondent would not do what he had threatened, and kept his eye on Respondent's gun. Respondent calmed down and allowed Officer Tipton take the gun from him. Officer Tipton then placed the gun on a table in the hallway. After Respondent calmed down, Officer Tipton and Respondent shook hands and Officer Tipton left the house. As Officer Tipton was leaving, Respondent offered to let him take the gun with him, an offer that Officer Tipton declined. Officer Tipton told Respondent that he was not going to take the gun because Respondent was in his own house and because Officer Tipton did not believe Respondent was going to leave the house and do anything. Officer Tipton left the gun with Respondent. After Officer Tipton left Respondent's house, the Respondent called the Pompano Beach Police Department and spoke to Barbara Johnson, who is a police department telecommunicator. Respondent asked to speak to Officer Lindquist. Ms. Johnson could tell from Respondent's voice that he was very upset, and during the course of his conversation with Ms. Johnson, Respondent threatened to shoot Officer Lindquist. Ms. Johnson kept talking to Respondent and was able to calm him down. Ms. Johnson immediately thereafter called Officer Lindquist and told him what had happened and that Respondent wanted Officer Lindquist to call him. Officer Lindquist called Respondent, who was still upset and angry. Respondent told Officer Lindquist by telephone that "it was a good thing that you hadn't come over to my house because if you had, I probably would have shot you." Officer Lindquist continued to talk to Respondent and calmed him down. As a result of this incident, Respondent was investigated by PBPD internal affairs and given a thirty day suspension from work. INVESTIGATION OF THREE CAR ACCIDENT ON MAY 19, 1987 On May 19, 1987, Respondent responded to Atlantic Boulevard in Pompano Beach to investigate a traffic accident involving three cars. This incident occurred when car #2 rear-ended car #1 and car #3 thereafter rear-ended car #2. Katherine Danner was the driver of car #3. Respondent arrived at the scene and assumed that Ms. Danner had first rear-ended car #2 (driven by a Mr. Flowers) which had caused car #2 to rear-end car #1. Respondent's assumed that the accident was entirely Ms. Danner's fault without conducting a proper investigation. Respondent told Ms. Danner that the other drivers would probably blame her for the entire accident. Mr. Flowers thereafter told Respondent that he had rear-ended car #1 before Ms. Danner became involved in the accident. Respondent then told Mr. Flowers that he was going to give him a ticket if he stuck to that story. Ms. Danner felt that Respondent was giving Mr. Flowers the opportunity to avoid a ticket by changing his story, and filed a complaint against Respondent with the Pompano Beach Police Department. Following an investigation, it was determined that Respondent had improperly handled the investigation and had exhibited a poor attitude. Respondent received a letter of reprimand reflecting those findings. There were no findings and no allegations that Respondent had falsified his police report or that he had solicited a false statement. The evidence failed to establish that Respondent solicited a false statement from Mr. Flowers or that he made a false statement in his police report. ASSAULT ON FORT LAUDERDALE POLICE OFFICERS ON AUGUST 21, 1987 At the time pertinent to this proceeding, Joel Maney, Lee Spector, Russell H. Hanstein, Leon O. Walton, Edward N. Good and Captain Robinson, were police officers employed by the City of Fort Lauderdale Police Department. On August 21, 1987, Officer Maney was on regular patrol in the City of Fort Lauderdale on the midnight shift. He was patrolling the area of Northwest 6th Street and Northwest 9th Avenue, Fort Lauderdale. At approximately 2:45 a.m., Officer Maney observed a dark blue, four door car (which he later learned was Respondent's personal vehicle) traveling at a high rate of speed west on Northwest 6th Street. Officer Maney, who was driving a marked patrol car, got behind Respondent's car as quickly as he could and got close enough to read the license plate. Officer Maney observed a Fraternal Order of Police emblem on the license plate, but he could not read the entire tag. Officer Maney suspected that the car might have been stolen, and he tried to run the license number. While Officer Maney was still following Respondent's car, Officer Spector, who was also driving a marked patrol car, pulled up behind Officer Maney and followed both vehicles. While both officers followed the blue car, it ran two stop signs. Officer Maney decided to stop the car and put on his blue lights and siren. Respondent was the operator and sole occupant of his car. Respondent pulled over within two blocks after Officer Maney put on his blue lights. After he stopped, Officer Maney got out of his car and approached the driver's side of Respondent's vehicle. Officer Spector got out of his car and approached the passenger's side of Respondent's vehicle. Respondent was wearing his uniform pants and a white T-shirt. Officer Maney asked Respondent for his driver's license and registration. Respondent responded in an agitated voice, saying "I don't have my fucking license." Officer Maney noticed that the Respondent had a gun stuck in his waistband, and ordered him several times to put both hands on the steering wheel. Respondent was not cooperating with Officer Maney or Officer Spector and in a very agitated voice used profanity against the officers. Officer Maney was of the opinion that Respondent was not acting abusive towards him, but that he was acting in an unprofessional manner. Respondent eventually gave the gun to the officers and stepped out of the vehicle as instructed. Even after Respondent exited his car, he was uncooperative with the officers and refused to let them do a pat-down search. At this point, Officer Maney called for backup officers, and Officers Hanstein, Good, Captain Robinson, and other officers came to the scene. Respondent was still in an agitated state when the backup officers arrived, and was making comments to no one in particular in a loud voice. Respondent stated that he was a Pompano Beach Police Officer and that he had been trained by Joe Hess and Ed White, two well-known martial arts experts who trained officers at the Broward County Police Academy. Respondent said that he weighed 240 pounds and that he was a "mean mother fucker." He said that he would hurt some people before he went to jail. Respondent looked directly at Officer Hanstein, pointed his index finger at him, and said, "I'm going to kick your ass." Respondent then looked at Officer Spector, pointed his finger directly at him, and said, "Then, I'm going to kick your ass." Respondent was between eight and ten feet away from these officers at the time he made these statements, and there were several other officers in the general area. He was unrestrained at the time he made these statement, and he used a serious, angry tone of voice. Respondent had the apparent ability to carry out his threats, and he caused the officers to be concerned for their safety. At this point, Respondent was arrested and charged with two counts of assault on a law enforcement officer. Both charges were misdemeanors. Respondent subsequently entered a plea of no contest to the two charges. At no time during the course of the incident did Respondent attempt to swing at or kick at any of the Fort Lauderdale Police Officers. Respondent did not offer any resistance after he was placed under arrest. At the time of this incident, Officer Hanstein, Officer Spector, and the other Fort Lauderdale officers were in uniform with marked patrol units. Following his arrest, Respondent's employment with the Pompano Beach Police Department was terminated. His employment was subsequently restored. ALCOHOLIC REHABILITATION On the night he threatened Officer Lindquist and on the night of his arrest by the Fort Lauderdale Police Officers, Respondent had been drinking. Respondent is an alcoholic and was drinking to excess, which contributed to his misconduct. Respondent admitted to himself that he was an alcoholic after he was fired following his arrest. He subsequently admitted his problem to his family, to the City Manager of Pompano Beach, and to his police supervisors, and he asked for help. On New Years' Eve, December 31, 1987, Respondent voluntarily checked himself into a five day inpatient program for alcohol detoxification. After successfully completing that program, Respondent joined an outreach program and became active in AA. Respondent successfully completed a course of treatment and therapy with the Broward County Alcohol and Drug Abuse Services on August 8, 1988. With the exception of one relapse, Respondent has not had a drink in two years. Respondent appealed the termination of his employment to the Pompano Beach Civil Service Board, which determined that his misconduct was alcohol related and ordered his reinstatement pursuant to a "One Last Chance Agreement". This arrangement returned Respondent to work on a special one year probationary period. Under the terms of the agreement, Respondent's employment would be terminated without recourse if he violated any PBPD policy or procedure and if the violation was alcohol related. Respondent successfully completed that probationary period and has been reinstated to all rights and privileges of any other PBPD officer. For the last three and one half years, Respondent has worked as a police officer assigned to the city jail. He incurred a three day suspension when he did not report to work following the death of his godson, but his work record has otherwise been acceptable. His supervisor views him as an outstanding employee and his colleagues respect him and consider him to be a dependable, efficient police officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact and the conclusions of law contained herein and which reprimands Respondent for his failure to maintain good moral character as found herein. DONE AND ORDERED this 5th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-1398 The proposed findings of fact submitted on behalf of the Petitioner are adopted in material part by the recommended order with the exception of the proposed finding in the second sentence of paragraph 45, which are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-24, 28, 29, 30, 33, 34, 35, 36, 37, 38, and 39 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 25 are rejected as being unsubstantiated by the evidence. While it is apparent that excessive drinking contributed to Respondent's problems, the proposed findings are an overstatement. The proposed findings of fact in paragraphs 26 and 27 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 31 and 32 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraphs 40-46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 47 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Dawn Pompey Whitehurst, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William E. Platlow, Esquire Panza, Maurer, Maynard, Platlow & Neel, P.A. 3801 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint dated December 19, 1995, 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 correctional officers. Section 943.12(3), Florida Statutes. Ms. Davis was certified by the Commission on May 18, 1993, and was issued Corrections Certificate Number 137735. She is currently certified as a corrections officer. Incident at the Royal Palm Beach K-Mart. In the Administrative Complaint, the Commission charged that On or about September 16, 1994, the Respondent, Dorothy B. Davis, did knowingly obtain, use, or did endeavor to obtain or to use a bread maker and a breadmixer of the value of $300.00 or more, the property of K-Mart, with the intent to either temporarily or permanently deprive the owner of a right to the property to her own use. On the morning of September 16, 1994, Timothy Meyers, a K-Mart employee of 16 years, was working as manager of the Royal Palm Beach K-Mart. Mr. Meyers observed Ms. Davis in the kitchen appliance aisle of the store with a shopping cart containing a Black and Decker bread maker and a Kitchen Aide mixer. The bread maker was priced at about $160.00 and the mixer at about $200.00. Moments later, Mr. Meyers observed another woman and a man push a shopping cart into the kitchen appliance aisle and, without looking at the various models available, put into their cart the same model Black and Decker bread maker and the same model Kitchen Aide mixer that Ms. Davis had in her cart. Mr. Meyers found it unusual that a shopper would choose these items without looking at the prices or at the other models available because the items were so expensive. Consequently, he followed the couple to the front of the store, where he observed them pay for the two items with cash. Mr. Meyers observed the couple leave the store by the front exit and put the bread maker and the mixer into a blue Ford Bronco. The man handed the woman what appeared to be the sales receipt for the bread maker and the mixer, and he then got into the Bronco and drove to the west side of the shopping center parking lot. Mr. Meyers observed the woman return to the store. She located Ms. Davis and handed her a piece of paper which Mr. Meyers believed was the receipt for the bread maker and the mixer. Mr. Meyers observed Ms. Davis push the cart containing the Black and Decker bread maker and the Kitchen Aide mixer toward the garden center, which is located on the east side of the store and has a separate exit and check-out register. He asked another store employee to follow Ms. Davis, and he went out the front exit to a location where he could observe the garden center exit but could neither see inside the garden center nor be seen by someone inside the store. When Mr. Meyers saw Ms. Davis push the cart containing the bread maker and the mixer through the garden center exit and onto the ramp leading into the parking lot, he stepped out and stopped her. He asked her if she had paid for the items in her cart at the front register, and she said yes and handed him a receipt for items of the same make and model as those she had in her cart. Mr. Meyers looked at the receipt, told Ms. Davis that she had not paid for the items, and told the cashier in the garden center to call the police. At this point, Ms. Davis left the cart on the sidewalk and walked away. Although Mr. Meyers told her to stop, she continued walking until she reached the Taco Bell restaurant located on the east side of the parking lot, about two hundred feet from the K-Mart store, where she waited until the police arrived. The K-Mart cash register detail tapes, which are the records of every transaction at the store, were checked and showed that, on the morning of September 16, 1994, only one Black and Decker bread maker and one Kitchen Aide mixer were sold. The evidence presented is clear and convincing that, on September 16, 1994, Ms. Davis took property belonging to K-Mart out of the store without paying for it. The property was valued at more than $300. These acts fall within the definition of grand theft found in section 812.014(1) and (2)(c)1, Florida Statutes, which constitutes a third degree felony pursuant to section 812.014(2)(c)1. Incidents involving Sandra Carey. In its Administrative Complaint, the Commission alleged that On or about October 18, 1994, Respondent, Dorothy B. Davis, did unlawfully commit a battery upon Sandra Carey, by actually touching or striking her or intentionally causing bodily harm to her against her will. On or about October 26, 1994, Respondent, Dorothy B. Davis, did unlaw- fully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well- founded fear in Sandra Carey that said violence was imminent, by swerving toward her with deadly weapon, to wit: a motor vehicle. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did unlawfully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well-founded fear in Sandra Carey that said violence was imminent, by throwing at her or in her direction a deadly weapon, to wit: beer bottles. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did knowingly use intimidation or physical force, threats, or attempts thereto, or offered pecuniary benefit or gain to Sandra Carey with intent to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or be absent from an official proceeding to which such person has been summoned by legal process. On or between October 20 and October 26, 1994, Respondent, Dorothy B. Davis, did unlawfully, with intent to place Sandra Carey in reasonable fear of death or bodily injury, willfully and maliciously, follow or harass said person and make a credible threat, by assaulting her with a motor vehicle, throwing beer bottles at her, and/or making verbal threats of bodily harm, which caused said person substantial emotional distress and served no legitimate purpose. (The allegations in the Administrative Complaint are set out in paragraph form for clarity.) On October 18, 1994, in Belle Glade, Florida, a fight took place in or near a grocery store parking lot in the 400 block of Southwest Avenue B Place between an unidentified man and a woman named Shirkia Webb. Ms. Webb was apparently not the winner of this fight, and the fight apparently ended when Ms. Webb was knocked to the ground. Ms. Davis drove into the parking lot at about the time Ms. Webb was knocked to the ground. She was driving her Ford Bronco, and her children, including her seven- month-old baby, were in the back seat. When Ms. Davis stopped the car and opened the door, Ms. Webb ran over to her and began talking to her. Ms. Davis then left her children in the vehicle and walked into the grocery store, leaving the keys in the ignition. While Ms. Davis was in the grocery store, Ms. Webb got into the Bronco and ran it into the vehicle owned by the unidentified man with whom she had been fighting. This vehicle was apparently parked in the grocery store parking lot at the time. When Ms. Davis came out of the grocery store, a crowd of people had gathered. She saw that her Bronco had been involved in an accident, and she learned that Ms. Webb had been driving the vehicle. She spoke with one of the police officers on the scene and told him that Ms. Webb had stolen her Bronco with her children inside. She later filed grand theft charges against Ms. Webb. Ms. Carey either overheard Ms. Davis telling the police officer that Ms. Webb had stolen her Bronco or someone told Ms. Carey that Ms. Davis had done so. Ms. Carey then went to one of the police officers and told him that Ms. Davis had given Ms. Webb her Bronco knowing that Ms. Webb intended to use it to hit the man’s vehicle. Someone in the crowd told Ms. Davis what Ms. Carey told the police officers. Ms. Davis was upset at the time because her children were in the Bronco when Ms. Webb hit the other vehicle. When she learned that Ms. Carey told the police that she had given Ms. Webb permission to drive the Bronco, she rushed up to Ms. Carey and struck her in the chest, yelling at her to stop telling lies. This incident was observed by several police officers, and Ms. Davis does not deny that she struck Ms. Carey on this occasion. On October 20, 1994, Ms. Davis was driving her Bronco down 5th Street in Belle Glade, and she speeded up when she saw Ms. Carey crossing the street ahead of her. Ms. Carey was carrying her child, whom she had just picked up from the baby sitter, and she hurried across the street because she believed Ms. Davis would hit her if she did not move out of the way of the Bronco. Ms. Carey reported this incident to the police on October 20. In a second incident, Ms. Carey was at the Glades Wash House when Ms. Davis pulled up in her Bronco and told Ms. Carey she was going to “mess her up” for telling the police that she had given Ms. Webb permission to drive her Bronco during the altercation which took place on October Ms. Carey reported this incident to the police on October 21, 1994. On October 26, 1994, Ms. Davis was driving her Bronco on 4th Street in Belle Glade and she swerved toward Ms. Carey as she was walking along the side of the road. Ms. Carey moved out of the way to avoid being hit; Ms. Davis was laughing as she drove past Ms. Carey. Ms. Carey reported this incident to the police on October 26, 1994. Ms. Carey feared that Ms. Davis would hurt her or her baby, and she experienced some emotional distress until after the October 26 incident. After this incident, she did not think about it anymore and went on with her life because she had no further contact or problem with Ms. Davis. The evidence presented is clear and convincing that Ms. Davis struck Ms. Carey in the chest on October 18, 1994. This act falls within the definition of battery found in section 784.03(1), Florida Statutes, which constitutes a first degree misdemeanor pursuant to section 784.03(2). The evidence presented is clear and convincing that Ms. Davis threatened Ms. Carey with bodily harm both by trying to run her down on the street on October 20 and October 26 and by her words at the wash house on October These threats fall within the definition of assault found in section 784.011(1), Florida Statutes, which constitutes a second degree misdemeanor pursuant to section 784.011(2).1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issue a final order finding that Dorothy B. Davis has failed to maintain good moral character and revoking her certification as a corrections officer. DONE AND ENTERED this 6th day of February, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
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.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact On May 16, 1983, Walter Taylor (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner), having been issued Correctional Certificate Number 66856. On December 23, 19851, Respondent was certified by Petitioner, having been issued Law Enforcement Certificate Number 66855. At all times material hereto, Respondent was employed by the Riviera Beach Police Department (Riviera Beach PD) as a law enforcement officer. In April 1994, Respondent and his wife were divorced. They had been married 14 years and had minor children. Prior to the divorce, Respondent had several confrontations with his wife regarding her relationship with another man, a Mr. Chilton, whom she had met in or around 1988. During one confrontation in April 1993, Respondent slapped his then wife. At times, Mr. Chilton was present when the confrontations took place. At no time prior to the divorce did Respondent harm or threaten to harm Mr. Chilton. Subsequent to the divorce, Respondent’s ex-wife and Mr. Chilton continued their relationship. In August 1994, Respondent wanted to attend his family’s reunion in New York but had insufficient funds to take his children with him. Respondent’s ex-wife agreed to attend the reunion with them. With her financial support, everyone could attend the reunion. Respondent and his ex-wife agreed to a pre- arranged time for them to meet on August 11, 1994, and drive to the reunion together. On August 11, 1994, prior to the pre-arranged time, Respondent and his children were packed and ready to leave. Respondent attempted to contact his ex-wife, so they could depart early. He called several places but to no avail. Having failed to locate his ex-wife, Respondent concluded that she was at Mr. Chilton’s apartment. Respondent called Mr. Chilton’s apartment several times only to get an answering machine. He drove to Mr. Chilton’s apartment. By this time, it was approximately 10:00 or 10:30 p.m. When Respondent arrived at Mr. Chilton’s apartment complex, he observed both Mr. Chilton’s and his ex-wife’s vehicles in the parking area. Respondent knocked on Mr. Chilton’s apartment door but received no response. Having knocked from two to five minutes, Respondent left but stopped nearby at a telephone. He repeatedly called Mr. Chilton’s apartment and again the answering machine answered. Respondent was convinced that his ex-wife was in Mr. Chilton’s apartment and that they were refusing to answer the telephone or the door. Respondent was upset and frustrated. Respondent returned to Mr. Chilton’s apartment and began knocking again. The more he knocked, the more frustrated he became. His knocks became harder and louder until he was pounding the door. No one answered the door. Respondent’s ex-wife and Mr. Chilton were afraid to open the door. At all times, Mr. Chilton and the Respondent’s ex-wife were inside the apartment. The door was locked and the deadbolt was engaged. Becoming more and more frustrated, Respondent hit the apartment door two or three times with both hands, arms raised, palms forward and with the weight of his body behind him. The force applied by Respondent knocked down the door. Respondent entered Mr. Chilton’s apartment beyond the door frame. He told his ex-wife to come outside with him and talk. She immediately complied. While exiting Mr. Chilton’s apartment, Respondent informed Mr. Chilton to bill him for the door. The door to Mr. Chilton’s apartment was damaged beyond repair and the area surrounding the door was severely damaged. The dead bolt area on the door was bulged. The area on the door jam in which the dead bolt slid had popped and come loose and was indented. The door handle was very loose. The trim on the doorway was split. On many occasions Respondent has been involved in law enforcement raids in which he, personally, has had to break down doors with his body. The method used by Respondent to break down the doors during the raids was not the same method used by him on August 11, 1994. Even though Respondent’s action forced open the door to Mr. Chilton’s apartment, he reacted out of frustration, not with the intent to force the door open. However, Respondent acted in reckless disregard for the consequences of his actions. He should not have returned to Mr. Chilton’s apartment but waited for his ex-wife until the prearranged time. Respondent’s actions could have escalated the situation into a more serious incident. He exhibited a reckless disregard for the safety and property of others. The incident was reported to the Martin County Sheriff’s Department. The Deputies on the scene took pictures and completed a report. Mr. Chilton did not want to file criminal charges against Respondent but only wanted his door repaired. The Deputies assisted Mr. Chilton in somewhat securing the door, so that it would at least close. Approximately 3:00 a.m. on August 12, 1994, Respondent telephoned Mr. Chilton. Respondent apologized for the damage to the door and agreed to pay for the damage. Subsequently, Respondent telephoned the apartment complex’s manager and agreed to pay for the damage to the door. The cost of the door was $352.99. A payment plan was arranged in which Respondent would pay for the damage in installments. Due to financial constraints, Respondent was unable to comply with the payment plan as agreed upon. The final payment was made on or about February 2, 1995. Respondent had no reason associated with his law enforcement duties to enter Mr. Chilton’s apartment. Respondent was off-duty and out-of uniform. Respondent entered Mr. Chilton’s apartment without permission or invitation. Respondent is responsible for the damage to the door of Mr. Chilton’s apartment. Prior to the incident on August 11, 1994, in or around June 1994, Respondent received training in Anger Management. On August 3, 1994, Respondent was promoted to Sergeant, on a probationary status, by the Riviera Beach PD. As a result of the incident on August 11, 1994, the Riviera Beach PD conducted a personnel investigation. On January 24, 1995, it issued a notice of intent to take disciplinary action against Respondent -– a demotion from a Sergeant to a Patrol Officer, which included a five percent cut in salary. The disciplinary action was taken by the Riviera Beach PD. On November 2, 1994, Petitioner’s Probable Cause Panel issued Respondent a Letter of Guidance for the act of committing battery (slapping) upon his then wife in April 1993. At the time of the issuance of the Letter of Guidance, Respondent had successfully completed the Probable Cause Intervention Program. The Probable Cause Panel was not aware of the pending disciplinary action against Respondent by the Riviera Beach PD involving the incident of August 11, 1994. Neither Respondent nor the Riviera Beach PD notified the Probable Cause Panel of the pending disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Suspending Respondent’s certification for thirty (30) days. DONE AND ENTERED this 17th day of March, 1997, in Tallahassee, 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 17th day of March, 1997.
