The Issue The issue to be resolved in this proceeding concerns whether a recreational vehicle with a gross vehicle weight in excess of 10,000 pounds meets the definition of "commercial motor vehicle" under relevant Florida law when driven by an employee of a licensed recreational vehicle dealer, rather than by the ultimate consumer.
Findings Of Fact On January 22, 2001, the Department of Transportation (Department) issued a driver vehicle inspection report (No. FL6050069 - Citation Violation) to Karl A. Nessamar. At the time the report was issued Mr. Nessamar was driving a private motor coach owned by Leisure Tyme RV, Inc. (Leisure Tyme), on a state road. A private motor coach is a vehicle which does not exceed the length, width and height limitations of Section 316.515(9), Florida Statutes, and is built on a self-propelled, bus-type chassis having no fewer than three load-bearing axles and being primarily designed to provide temporary living quarters for recreational, camping or travel use. See Section 320.01(b)(5), Florida Statutes. Leisure Tyme is a recreational vehicle dealer as defined in Section 320.822(i), Florida Statutes. The recreational vehicle Mr. Nessamar was operating did not have a U.S. Department of Transportation number on display. When Mr. Nessamar was issued the inspection report he did not possess a Class B driver's license; had no driver's record of duty status (log book); and had no medical certificate in his possession. Further, Mr. Nessamar was operating the vehicle in the course of his employment for Leisure Tyme at the time the inspection report was issued. The gross vehicle weight rating of the subject recreational vehicle was 33,700 pounds. When the inspection report was issued, Mr. Nessamar was an employee of Leisure Tyme and was driving the vehicle from Tampa, Florida to Mary Esther, Florida. It was being returned to Mary Esther after having been displayed at the Florida RV "Super Show." This recreational vehicle was not carrying any cargo, passengers or hazardous materials at the time it was driven by Mr. Nessamar and when the citation or inspection report was issued. Because of the issuance of the vehicle inspection report the vehicle and Leisure Tyme were placed "out-of-service," which means that none of the vehicles in its ownership or operation can be driven until those vehicles and drivers meet all of the requirements of Title 49 Code of Federal Regulations, Parts 390 through 395 and Chapter 322, Florida Statutes. The Department contends that whenever a recreational vehicle with a gross vehicle weight rating (GVW) exceeds 10,000, pounds and is driven by anyone other than the ultimate consumer or owner of that vehicle, it becomes a "commercial motor vehicle." It defines a commercial motor vehicle as any self- propelled or towed vehicle used on the public highways in commerce to transport passengers or cargo if such vehicle has a GVW of 10,000 pounds or more; is designed to transport more than 15 passengers including the driver; or is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act, as amended (49 USC subsections 1801 et. seq.). See Section 316.003(66), Florida Statutes (2000). There is no question, however, that the vehicle at issue meets the definition of a "private motor coach" because it has three load-bearing axles, a self-propelled bus type chassis, is primarily designed to provide temporary living quarters for recreational camping and travel use and does not exceed the length, width and height limitations provided in Section 316.515(9), Florida Statutes. If indeed the vehicle in question is deemed to be a commercial vehicle, the driver, vehicle and owner become subject to many restrictions and regulations that do not apply to non- commercial motor vehicles. This is because the Legislature has adopted many of the federal regulations pertaining to commercial motor vehicles in Section 316.302(1)(b), Florida Statutes, specifically, 49 C.F.R. Parts 382, 385 and 390 through 397, with the exception of 49 C.F.R. Section 390.5. Thus, the pivotal question to determine concerning whether the cited violation is correct, is whether the vehicle in question is a commercial motor vehicle and, as related thereto, whether it is a recreational vehicle.
The Issue The issue is whether the registration of Robert T. Marsh as a motor vehicle service agreement company salesman should be revoked. The Superintendent of Insurance of the State of New York revoked the licensure of Mr. Marsh under Section 117 of the Insurance Law of that state and Mr. Marsh failed to acknowledge this on his application for licensure in Florida, despite a specific question requiring disclosure of such information. This demonstrates a lack of fitness or trustworthiness to engage in the business authorized under Chapter 634, Florida Statutes. Mr. Marsh's license should be revoked.
Findings Of Fact Mr. Marsh became licensed 1/ as a motor vehicle service agreement company salesman in Florida in 1984. On May 11, 1977, the Superintendent of Insurance of the State of New York revoked all casualty insurance licenses of Robert T. Marsh under Section 117 of the Insurance Law of the State of New York because he failed to account for premium funds collected from clients and violated agreements regarding the payment of unearned commissions due to insurers (Petitioner's Exhibit 2a, Tr. page 13, line 9). In his findings of fact, conclusion and decision the Superintendent of Insurance also found that letters directed to Mr. Marsh regarding complaints filed with the New York Insurance Department were ignored, and such action reflected adversely upon Mr. Marsh's trustworthiness (id). The Insurance Department of the State of New York notified Mr. Marsh that his license had been revoked by certified mail dated June 28, 1977. The return receipt for that letter shows that it was received by Mr. Marsh on June 28, 1977 (Petitioner's Exhibit 4); Mr. Marsh admitted during the hearing that he received the notification from the New York Department of Insurance (Transcript p. 13 lines 2 and 3). Mr. Marsh applied for registration in Florida as a motor vehicle service agreement company salesman using Department form DI4-161 on August 31, 1984 (Petitioner's Exhibit 1). That form posed the question "Has your application for license ever been declined by this or any other Insurance Department or has your license or eligibility to hold a license ever been declined, suspended, revoked, placed on probation or administrative fine levied? If answer is "YES," give full details: Mr. Marsh answered no. The Department of Insurance learned that Mr. Marsh's license in the State of New York had been revoked after he received his Florida motor vehicle service agreement salesman license. The Department then sought an explanation of his original answer to question 5 above in an amended application filed December 13, 1985 (Petitioner's Exhibit 3). In his amended application Mr. Marsh then stated "To my knowledge my license was never suspended or revoked . . . I had mail going to many different addresses and know that I didn't receive all of it." (Petitioner's Exhibit 3) Mr. Marsh's testimony at the hearing that he signed the return receipt for the revocation notice, as well as the copy of the return receipt for the revocation letter from the Insurance Department of the State of New York rendered this first explanation unworthy of belief. Mr. Marsh explained at the hearing that he thought question 5 referred only to discipline of a service agreement license, but the New York revocation was for a casualty license, and therefore did not have to be disclosed (Transcript, p. 13, lines 6-9). Not only is this a strained interpretation of the question, it is not the explanation Mr. Marsh gave to the Department in his amended application, and apparently was developed between the date of the amended application and the date of the final hearing. This belated excuse for nondisclosure of the New York license revocation is also rejected.
Recommendation It is recommended that the motor vehicle service agreement company salesman license issued to Robert T. Marsh be REVOKED for misstatements or misrepresentations made in his application for licensure which have demonstrated a lack of fitness or trustworthiness to engage in business authorized under Chapter 634, pursuant to Sections 634.181(1), (5) and 634.191(1), Florida Statutes (1983). DONE AND ORDERED this 7th day of May 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 7th day of May 1986.
Findings Of Fact Respondent is a certified law enforcement officer, holding certificate number 08-90-002-02, which was issued December 7, 1990. Respondent was born June 12, 1966. He was raised in the Harlem area of Clewiston. Everyone knows each other in the Harlem area, which contains a predominantly black population of 3000-4000 persons. Since he was six years old, Respondent's best friend was John Gowdy. They are the same age and grew up in the same neighborhood. Together, they went to school, worked, and played sports. Respondent was a well-known football player when younger. Respondent and John entered the military at about the same time. Once he finished high school, Respondent realized that there was not enough money for him and his sisters to go to college, so he joined the Air Force. He served for nearly six years without any problems and received an honorable discharge. He immediately entered the Florida Highway Patrol academy. In the meantime, John Gowdy had entered the banking profession and moved to the Miami area. Respondent successfully completed the academy on December 7, 1990. He was immediately assigned to the Florida Highway Patrol post in Ft. Myers and began the required one-year probationary period. On August 14, 1991, about eight months after joining the Florida Highway Patrol, Respondent's sister told him that their mother was ill with heart trouble. Respondent had been working evenings, so, after work, he drove from Ft. Myers to Clewiston, arriving at his mother's house in the morning. After taking her to the doctor's office and getting her medicine, Respondent was at home with her when Shelton Gowdy drove up and asked if he could service the transmission on Respondent's car. Shelton was John's younger brother. Shelton has twice served time in prison. Though they were not friends, Respondent allowed Shelton to earn some money by working on Respondent's car whenever he was in Clewiston visiting his mother or the mother and family of Shelton and John Gowdy. Respondent told Shelton he could take Respondent's car and service the transmission. Shelton drove the car to his mother's house to work on the car. Later in the day, Respondent went to the home of Shelton's mother and checked on his car. Shelton said that he needed a light bulb to fix a parking light, so Respondent allowed Shelton to drive the car downtown to get the bulb. In the meantime, Respondent talked to Shelton's mother and sister, with whom Respondent has remained close over the years. Respondent watched television with them and was not particularly concerned that Shelton was gone several hours with the car. While driving Respondent's car, Shelton picked up Norman Banks and, while cruising, noticed a white couple driving a pickup truck in the Harlem area, near the home of Respondent's mother. Respondent, Shelton, and Mr. Banks are black. The white couple were undercover deputies of the Hendry and Collier County Sheriff Departments. The pickup truck and Respondent's car pulled over to the side of the road, side by side. Respondent's car was mostly still in the road. The two vehicles were about three or four feet apart. The driver of the truck remained in his seat, which was considerable higher than the seats of the passenger car. The driver of the truck was closest to the car's front passenger window. Shelton got out of the driver's side of the car, walked behind the car, and approached the driver of the truck. Quickly, they negotiated the sale of crack cocaine from Shelton to the undercover deputy. Just as quickly, the transaction ended and the deputy drove away. The deputy driving the truck later identified Respondent as the passenger in the car driven by Shelton. The deputy on the passenger side of the truck could not see Shelton's passenger. The lighting was poor. The deputy driving the truck could not closely scrutinize the passenger because he had to remain alert to possible trouble from the approaching driver, as well as possible unseen assailants elsewhere in the vicinity. The deputy who identified Respondent did not seem credible as a witness. He seemed ill at ease and nervous while testifying. He originally identified Respondent in a photo lineup. When shown a photocopy of the same photo lineup during his deposition, the deputy declined to identify Respondent, though he claimed that the quality of the photocopy did not prevent him from identifying Respondent. Even after being assured by Respondent's counsel that Respondent would not hold the deputy liable for a misidentification, the deputy continued to refuse to make the identification and insist on the original photographs, despite claiming that he recognized the passenger from the photocopies of the photographs. Although the deputy who identified Respondent denies seeing a baseball cap on the passenger, someone besides Respondent mentioned a cap to the Florida Highway Patrol internal investigator who later conducted the internal investigation. He recalls that someone said that the passenger wore a baseball cap, possibly turned around backwards. Mr. Banks typically wears a baseball cap backwards. The internal investigator reports reliably that Respondent was very nervous during an interview. However, Respondent was still on probation and aware that he was under investigation for some offense, but he was unsure of the nature of the offense. The internal investigator reports less reliably that Respondent was evasive during the interview. In fact, Respondent's inability to recall what he was doing on August 14 was because he had not been previously told of the specific allegations, including the date of the alleged offense. The important facts of the case are that the passenger in the car with Shelton was very dark skinned. Respondent is very dark skinned. The identification by the white deputy, in poor lighting, is further undermined by the different heights of the vehicles, the brevity of the transaction, and the urgency of remaining alert to possible dangers from any direction. The identification by the deputy is also undermined by his refusal to identify Respondent in a photocopy of the photo lineup, despite saying that he could do so. The uneasiness of the deputy during testimony could be due to any of a number of factors, such as growing concern over the accuracy of the identification. Respondent's testimony was straightforward and honest. His alibi witnesses were obviously biased in his favor and may have supplied facts that they never knew or no longer recall. For instance, they both testified that Shelton returned before 9:00 pm when the transaction likely did not take place until shortly after 10:00 pm. Petitioner's case is not aided by the general circumstances. Respondent does not appear to have gotten into much trouble during his life, including for nearly six years under close supervision in the Air Force. To the contrary, by all indications, he appears to have been an honest, hard-working, and purposeful young man. Yet, Petitioner suggests that Respondent, having recently become a Florida Highway Patrolman, would sit as a passenger in his own car, allowing a twice-convicted person to drive in search of a drug deal. Moreover, Petitioner suggests that Respondent, with his side window open, would accompany Shelton on his criminal errand in the neighborhood where Respondent's mother lives and where Respondent is known to most of the residents. Petitioner never deals with the incongruity of this proposed behavior by a person of Respondent's apparent character. A person so stupid or disturbed as to attempt what Petitioner suggests almost surely would have stumbled much earlier in life.
Recommendation It is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent. ENTERED on April 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 21, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-5: rejected as subordinate. 6-7 (except last sentence): adopted or adopted in substance. (last sentence): rejected as irrelevant as this fact was not known to Respondent. (except last sentence): rejected as recitation of evidence. 8 (last sentence)-12: adopted or adopted in substance. 13: rejected as subordinate. 14 (first sentence and first clause of second sentence): adopted or adopted in substance. 14 (remainder)-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony. 17: adopted or adopted in substance. 18-23: rejected as subordinate. 24: adopted or adopted in substance. 25: rejected as subordinate. 26: rejected as unsupported by the appropriate weight of the evidence. 27: rejected as subordinate and recitation of testimony. 28: adopted or adopted in substance. 29-34: rejected as recitation of evidence. 35-36: rejected as subordinate. 37: adopted except to the extent that she and Respondent were together during the time of the drug deal watching television. 38 (first sentence): adopted or adopted in substance. 38 (remainder): rejected as unsupported by the appropriate weight of the evidence, subordinate, and recitation of testimony. 39: rejected as recitation of evidence. 40: rejected as subordinate. 41-43: adopted or adopted in substance except that the evidence is that he was nervous but not evasive. The information received indirectly from Officer Gary was enough only to alert Respondent that he was in some sort of trouble, not enough to alert him to the specifics of the allegations so that he could have been prepared to rebut the charges. By this time, Respondent probably knew that Shelton had used Respondent's car for a drug transaction and thought that Respondent would be in trouble for that. 44-55: rejected as recitation of evidence and subordinate. 56: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 57-58: rejected as irrelevant. 59: rejected as unsupported by the appropriate weight of the evidence and subordinate. Rulings on Respondent's Proposed Findings 1-9: adopted or adopted in substance. 10-11: rejected as subordinate and recitation of testimony. 12-15: adopted or adopted in substance. 16-17: rejected as subordinate. 18-19: rejected as recitation of evidence and subordinate. 20-22: adopted or adopted in substance. COPIES FURNISHED: A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Nancy C. Waller Regional Legal Advisor Florida Department of Law Enforcement 4211 North Lois Ave. Tampa, FL 33614-7774 Douglas L. Wilson The Wilson Law Firm 680 Sanctuary Rd. Naples, FL 33964-4837
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, certified by Petitioner as a law enforcement officer. Until his retirement in January 2008, Respondent served in excess of 20 years as a sworn police officer in the Tampa Police Department (TPD). At the time of his retirement, he was a corporal. At all times material to the instant case, including January 4, 2007, in addition to working full-time as a TPD police officer, Respondent owned an automotive parts and service business (Adkins Enterprises) and the seven-acre property at 4709 East Hillsborough Avenue in Tampa (including the improvements thereon) where the business was located. Until April 2005, when its Florida Department of Highway Safety and Motor Vehicles (HSMV)-issued motor vehicle dealer's license expired, Adkins Enterprises also sold used vehicles at this location. The business had approximately 25 employees. Respondent left the day-to-day operations of the business to his managerial employees. He would stop by when he was off-duty to check on how things were going and to help out, particularly with the paperwork. At a meeting held in 2004 (2004 Meeting), TPD Captain Robert Lovering introduced Respondent to three brothers-- Roynauth "Sham" Sahdeo (Sham), Seewchand "Blacks" Sahdeo (Blacks), and Deonauth "Prim" Sahdeo (Prim)--all of whom worked at a business on 15th Street in Tampa (S & S Auto) which did automotive repairs and paint and body work, as well as provided towing services.2 Respondent understood Sham to be the "main brother," under whom the other two brothers worked. Sham, in fact, at that time, did own the business (which, unlike Adkins Enterprises, was not a Florida-licensed motor vehicle dealer). Blacks and Prim did not then have any ownership interest in S & S Auto. It was verbally agreed, at the 2004 Meeting, that Adkins Enterprises and S & S Auto would go into the auto parts and scrap metal business together, with the auto parts and scrap metal to be sold by the joint venture coming from vehicles purchased at motor vehicle auctions using Adkins Enterprises' dealer license.3 (Section 320.27, Florida Statutes, provided then, as it still does, that only licensed dealers could purchase vehicles at these auctions.) Respondent also agreed to rent out space to S & S Auto at Adkins Enterprises' 4709 East Hillsborough Avenue location (Adkins' Location). Sometime in or around 2005, Sham sold his interest in S & S Auto to his two brothers, Blacks and Prim. As far as Respondent understood, however, Sham continued to act on behalf of S & S Auto.4 Also in or around 2005, S & S Auto applied for and obtained a motor vehicle dealer license from HSMV. Because Adkins Enterprises no longer had its dealer license (it having expired in April 2005), S & S Auto's dealer license was used to purchase (at auction), not only the vehicles it sold as a licensed motor vehicle dealer, but also the vehicles from which the parts and scrap metal for the joint venture between Adkins Enterprises and S & S Auto were obtained. After they were purchased at auction, the vehicles were transported to Adkins' Location on a tow truck operated by Blacks. Space was set aside at Adkins' Location for S & S Auto to conduct motor vehicle sales operations. Insofar as Respondent knew, Dale Marler was in charge of these operations. Sham helped Mr. Marler out, but most of Sham's time at Adkins' Location (where he had a regular presence) was devoted to the auto parts/scrap metal joint venture in which Adkins Enterprises and S & S Auto were participants. (It was at Adkins' Location where the vehicles purchased for the joint venture were stripped and crushed, and the salvaged auto parts were sold.) When he had the time, as a favor, Respondent would take tag and title paperwork to the HSMV local office for Mr. Marler and/or Sham. As of January 4, 2007, Sham and Mr. Marler were still working out of Adkins' Location and engaging in the business activities described above. On that day, Respondent agreed, at Sham's request, to go to the local HSMV office and purchase temporary tags for S & S Auto's motor vehicle sales operations at Adkins' Location. In addition to the money to make the purchase, Sham provided Respondent with S & S Auto's HSMV- assigned Personal Identification Number (PIN), which Respondent had to give to the HSMV clerk in order to initiate the transaction. Respondent went to the local HSMV office, as Sham had requested, later that same day (January 4, 2007). He told the clerk that he was there to purchase 25 temporary tags for S & S Auto, and he gave her S & S Auto's PIN. The clerk inputted the information Respondent had provided her into the HSMV computer system and produced a completed HSMV Form 83090, which represented S & S Auto's application for 25 temporary tags (S & S Auto's Application). The clerk printed out copies of S & S Auto's Application, and Respondent signed the "agency copy" on the "Authorized Representative for Dealership" signature line. At the clerk's request, he showed her his driver's license, and she wrote down his driver's license number next to his signature on the application. Respondent left the office with 25 temporary tags (numbered Q415821 through Q415845), for which he paid $53.00. Respondent did not knowingly provide any false or misleading information in obtaining these tags. He honestly believed that he was acting as the "Authorized Representative" of S & S Auto in this transaction, as he represented by placing his signature on the "agency copy" of S & S Auto's Application. When he returned to Adkins' Location, Respondent put the 25 temporary tags that had been purchased at the local HSMV office in a file for Mr. Marler and Sham to use. He had nothing further to do with the tags.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of May, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2011.
Findings Of Fact Respondent was first licensed by Petitioner as a commercial driving instructor in November, 1981, until November, 1982. Until that license was summarily suspended on April 8, 1982, Respondent was employed by Fajardo Driving School. On January 8, 1982, at approximately 6:00 A.M., Respondent approached the waiting line at the Central Driver's License Office with two Cuban applicants for drivers' licenses. A number of Haitian applicants were at the beginning of the line. Respondent attempted to place his two students in front of the Haitians. When the Haitians refused to allow Respondent and his students to enter the line in front of them, Respondent and his two students went to some nearby trash cans, obtained bottles, and began fighting with and striking the Haitians who had refused to give up their place in line to Respondent and his students. After the altercation, Respondent got in his car and left the area. He subsequently returned to the Central Driver's License Office, where he was arrested and charged with aggravated battery with a bottle. As a result of the bottle throwing engaged in by Respondent and his two students, two of the Haitians who were attacked received head injuries requiring hospital treatment. On other occasions, Respondent has placed his students at the head of the line without resorting to violence in order to obtain such preferred treatment for his students. On March 23, 1982, at the Central Driver's License Office, Respondent had a disagreement with Enelio Rodriguez, another driving instructor for Fajardo Driving School, over a ten-dollar charge for a rental car. When Rodriguez refused to pay Respondent the ten dollars Respondent was demanding, Respondent struck Rodriguez in the eye. On March 23, 1982, Miguel Orlando Uria, a driving instructor and owner of Uria Driving School, requested Amado Perera, a driving instructor for Autosa Driving School, to move Perera's car from the starting position, so Uria could place his student in the starting position for the driving test at the Central Driver's License Office, since Uria's student was due to be tested earlier in time than any of Perera's students. Although neither Respondent's car nor Respondent's student was the subject matter of the discussion between Uria and Perera, Respondent interposed himself into the argument and became "nasty." Respondent did not strike anyone on this occasion; however, Department personnel were present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Ernesto E. Luque. RECOMMENDED this 30th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 30th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.- Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges. The Notice of Injury signed by Respondent contained information which was false or misleading.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent. DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of January, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1-38 are accepted. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-5 are accepted. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph 6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is accepted; however the facts related in that form were false or misleading. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street Suite 200 Miami, Florida 33172 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact A commercial vehicle owned by Garrett Enterprises of Tampa, Inc. and operated by Respondent Smith entered the weigh station located on I-4 West in Plant City, Hillsborough County, Florida, on August 8, 1991. During the routine inspection, it was discovered that the vehicle's registration had expired on May 31, 1991. The tag on the vehicle clearly bore the expiration date. The statutory legal weight of 35,000 pounds for an expired registration was subtracted from this vehicle's tax class weight of 76,180 pounds to determine the amount by which the vehicle was overweight. A penalty of 5 cents a pound was assessed upon the difference of 41,180 pounds which amounted to a fine of $2,059.00. Respondent Smith has driven commercial vehicles in Florida for seven years. Prior to the registration at issue in this proceeding, he had never purchased an apportioned tag. Although he was originally aware that the apportioned tag he purchased would expire on May 31, 1991, he did not pay attention to the expiration date noted on the tag because he assumed the Department of Highway Safety and Motor Vehicles would mail him a renewal notice prior to its expiration. The Department of Highway Safety and Motor Vehicles does not mail renewal notices to owners of vehicles with apportioned tags. Respondent did not become aware of this variation in the Department's notification policy until after his vehicle was inspected and he had paid the penalty. Respondent had the vehicle registration renewed within ten days after the instant fine was levied.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered finding that the penalty of $2,059.00 was correctly assessed and denying Respondent's request for a refund or a reduction. DONE and ENTERED this 19th day of October, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 19th day of October, 1992. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Florida Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32399-0450 Jesse Smith 114-L Mitchell Road Land O' Lakes, FL 34639 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458
The Issue The issues are whether Respondent violated Subsections 943.1395(7) and 943.13(7), Florida Statutes (2007),1 and Florida Administrative Code Rule 11B-27.0011(4)(b), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Marich was certified by the Commission on February 2, 1971, and was issued Law Enforcement Certificate Number 47090. At all times material to the Amended Administrative Complaint, Mr. Marich was employed as a law enforcement officer with the Franklin County Sheriff’s Office (Sheriff’s Office). In October and part of November 2007, Mr. Marich was a lieutenant assigned to the duty of road supervisor, which meant that he supervised six men in 12-hour shifts. Mr. Marich was issued a marked patrol car to use in the performance of his law enforcement duties. Mr. Marich’s patrol car was a Ford Crown Victoria. No evidence was presented to establish the year the patrol car was manufactured. The Sheriff’s Office provided gasoline to run the patrol cars assigned to its employees. The gasoline was the property of the Sheriff’s Office. The Sheriff’s Office's fueling station was located behind the jail. The fueling station is a self-serve station. Each officer would pump the gasoline into his or her patrol car and log the amount on a log book kept near the pump. The gasoline dispensed from the pump by the law enforcement officers was to be used only by the law enforcement officers to carry out their official duties. The Sheriff’s Office, as owner of the gasoline, did not authorize or consent to any appropriation of gasoline for any law enforcement officer’s private use or personal benefit. In October and November 2007, Mr. Marich carried one or more gasoline cans in the trunk of his patrol car. His supervisor, Major Chester Creamer, did not direct Mr. Marich to carry gasoline cans in his patrol car to assist stranded motorists or other deputies. Major Creamer is not aware of any of the other Sheriff's Office's law enforcement personnel carrying gasoline cans in their patrol cars. Mr. Marich worked 12-hour shifts from 6:00 p.m. to 6:00 a.m. on October 26 and 27, 2007; October 28 and 29, 2007; October 31 and November 1, 2007; November 5 and 6, 2007; and November 6 and 7, 2007. On the intervening days, Mr. Marich was not on duty. The Sheriff’s Office had reason to believe that gasoline was being taken without authorization from the Sheriff’s Office’s fueling station. Surveillance video cameras were set up at the fueling station. Petitioner’s Exhibit 1 is a video disc made from the recordings of the surveillance video cameras. The disc fairly and accurately depicts Mr. Marich on October 27 and 29, 2007, and November 2, 6, and 7, 2007, while at the fueling station located at the Sheriff’s Office, knowingly dispensing gasoline into the fuel tank of his assigned Sheriff’s Office's patrol car and also into a gasoline can or cans located in the trunk of Mr. Marich’s patrol car. Mr. Marich claims that the gasoline which he was dispensing into gasoline cans in the trunk of his patrol car was used for official purposes. He claims that he helped stranded motorists; that he used more than a tank of gasoline on each shift and needed the extra gasoline so that he would not run out of gasoline; and that his wife, who is an employee of the Sheriff’s Office, would often forget to fill her Sheriff’s Office's vehicle with gasoline, and he had to put gasoline in her vehicle from the cans in the trunk of his patrol car. It is not a frequent occurrence for the Sheriff's Office's law enforcement officers to help motorists who have run out of gasoline. Normally, a deputy assisting such motorists would take the motorist to the nearest service station so that the motorist can purchase gasoline or the deputy would get a gasoline can and go to the nearest service station to get gasoline, and the motorist would be responsible for paying for the gasoline. However, there have been exceptions to this method of aiding stranded motorists when the motorist was unable to pay for the gasoline. A deputy could get enough gasoline from the Sheriff's Office's fueling station to get the motorist home. The deputy was to log the amount of gasoline taken and note in the log that the gasoline was for a stranded motorist. Mr. Marich has provided stranded motorists with gasoline from the cans in the back of his patrol car in the past. On one such occasion, he was called by the then sheriff to aid a motorist who had run out of gasoline. Mr. Marich responded to the call and provided the motorist with gasoline. The then sheriff approved of Mr. Marich carrying gasoline in the trunk of his patrol car for such purposes. When a Sheriff's Office's law enforcement officer encounters a disabled vehicle, including vehicles that are out of gasoline, the officer is to advise the dispatcher for the Sheriff’s Office that he or she has encountered a disabled vehicle and give the location of the vehicle. The officer is also supposed to log the encounter on the Sheriff's Office's computer system and to run a check on the vehicle's license tag to make sure the vehicle is not stolen. From October 27 through November 7, 2007, the records for the Sheriff's Office do not contain any record of Mr. Marich encountering a disabled vehicle and providing assistance to a stranded motorist. No evidence was provided to establish that Mr. Marich noted on the log that he had used gasoline for a stranded motorist. On at least one occasion prior to October 2007, Mr. Marich has provided gasoline from the cans in the back of his patrol car to a deputy, other than his wife, who had run out of fuel. No evidence was presented to rebut Mr. Marich’s claims that he used the gasoline that he put in the cans in the back of his patrol car for the patrol car that his wife used in her official duties with the Sheriff’s Office. Thus, his testimony is credited. No evidence was presented to rebut Mr. Marich’s claims that he used the gasoline that he put in the cans in the back of his patrol car for his patrol car while he was on road patrol. Thus, his testimony is credited. Mr. Marich was terminated from his employment with the Sheriff’s Office on November 7, 2007, for the unauthorized taking of gasoline. Major Creamer inspected Mr. Marich’s patrol car within an hour of Mr. Marich’s termination. Major Creamer noticed a strong smell of gasoline in the interior of the car, which was emanating from the trunk of the car. The odor lingered after several cleanings, and the matting had to be removed from the trunk to get rid of the gasoline smell. During 2006 and 2007, Mr. Marich drove a blue, two- tone Dodge pickup truck as one of his personal vehicles. On two occasions, Mr. Marich was observed siphoning gasoline from a Sheriff’s Office's patrol car into a gasoline can and pouring the gasoline into a blue, two-tone Dodge pickup truck. However, the Commission did not establish by clear and convincing evidence that the gasoline in the patrol car was the property of the Sheriff’s Office. Mr. Marich could have bought the gasoline and put it in the patrol car. Thus, the siphoning of the gasoline does not establish that Mr. Marich stole the gasoline. There was testimony from a mechanic, who had worked on the Sheriff’s Office’s patrol cars for several years, that Ford Crown Victoria's had an anti-siphoning device which prevented gasoline from being siphoned from the fuel tank. The mechanic did not know when Ford Motor Company began installing the anti- siphoning devices and had not examined the patrol car driven by Mr. Marich to determine whether it contained an anti-siphoning device or to determine whether anyone had tampered with the gasoline nozzle. Thus, the mechanic’s testimony is not credited with establishing that gasoline could not be siphoned from the patrol car driven by Mr. Marich. The evidence is not clear and convincing that Mr. Marich used the gasoline that he put in the gasoline cans in the trunk of patrol car on the dates alleged in the Amended Administrative Complaint for his personal benefit or for the benefit of others who were not authorized to use the gasoline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that John T. Marich did not violate Subsections 943.13(7) and 943.1395(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2008.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
