The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 19-82- 002-10. At all times pertinent hereto, Respondent was a certified law enforcement officer, and was employed by the City of Miami Police Department as a police officer. On May 31, 1985, a drug "rip-off" occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug "rip-off" occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug "rip-off" occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Zabala did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias , Regino Capiro, and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and who were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for certain benefits that he received. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had incriminated. Mr. Pedrera refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 who knew Respondent as a fellow officer and as a former neighbor. The following allegations are based on information provided by Mr. Arias to Agent James E. Judd during the course of his debriefing by the Federal Bureau of Investigation: 2. a) On or about dates in April 1985, Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully fail or refuse to report to his superiors or otherwise take official action upon learning that fellow officers, including Felix Beruvides and Ricardo Perez, had committed, and intended to commit in the future, the crimes of possession of in excess of 28 grams of a mixture containing cocaine and theft. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully agree, conspire, combine or confederate with Felix Beruvides, Armando Estrado, Roman Rodriguez, and Armando Un-Roque, to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully attempt to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. These allegations stem from information Mr. Arias gave regarding the alleged attempted rip-off of cocaine from a freighter on the Miami River on an unknown date in 1985. The last name of the captain of this freighter was "Rhoda", and this incident was referred to at the hearing as the Rhoda incident. Respondent allegedly drove a fellow law enforcement officer, Felix Beruvides, to meet with certain men as part of a conspiracy to steal certain drugs from this freighter. These men, some of whom were referred to as Marielitos, planned to forcibly enter the freighter using their weapons and to steal cocaine that had been smuggled into Miami on the freighter. Mr. Arias was not present at this drug rip-off and his knowledge of this incident is based exclusively on his conversations with the Respondent and with Mr. Beruvides. Mr. Beruvides was not presented as a witness at the formal hearing. It was the conclusion of Mr. Arias from his conversations with Respondent that the Respondent knew that Mr. Beruvides was engaged in wrongdoing, but that Respondent had not been deeply involved in the Rhoda conspiracy. Mr. Arias testified that Respondent may have functioned as a lookout, but that, at a minimum, he was aware of this criminal activity and that he did not report it to his superiors. Mr. Arias's testimony as to conversations he had had with Respondent was vague as to when the conversation(s) occurred and as to what Respondent said. Mr. Arias had never seen Respondent in the possession of cocaine or other drugs. Lieutenant Paul Shepard testified as to certain hearsay statements and as to a photographic lineup identification made by one Armando Un Roque, one of the Marielitos supposedly involved in the Rhoda rip-off. Mr. Un Roque did not testify at the formal hearing. Mr. Un Roque identified Respondent as being the driver of a red Trans Am who met with himself, Mr. Beruvides, and others when the Rhoda drug rip-off was planned. Mr. Un Roque told Lt. Shepard that he and others boarded the freighter, but that they abandoned their attempted rip-off after realizing that the ship was too big for them to search by themselves. 1/ The evidence presented by Petitioner of Respondent's knowledge and possible participation in the Rhoda rip-off is met by Respondent's credible denial of any knowledge as to the alleged events. Although Respondent was driving a red Camaro (which is similar in style to a Trans Am) during the time these events allegedly occurred, his testimony that he had given Mr. Beruvides a ride home following their shift in his red Camaro and that they stopped at a convenience store patronized by Marielitos provides a plausible explanation as to how Mr. Un Roque acquired that information. Additionally, FBI Agent Judd testified that the Rhoda rip-off never actually occurred. The conflicts in the record relating to the allegations found in Paragraph 2(a), (b), and (c) of the Amended Administrative Complaint are resolved in favor of Respondent and against Petitioner. It is concluded that the Petitioner has failed to establish by clear and convincing evidence the factual basis for those allegations, to-wit, that he conspired to participate in this alleged criminal activity or that he was aware of that activity. The remaining allegations of the Amended Administrative Complaint pertain to information given to FBI Agent Judd by Mr. Arias during his debriefing as to money Mr. Arias gave to Respondent. Those allegations, from Paragraph 2 of the Amended Administrative Complaint, are as follows: On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully solicit, request, accept or agree to accept money, to-wit: $1,000 in U. S. currency, as an inducement to testify or inform falsely, or withhold testimony or information, upon his testimony as a witness in a proceeding instituted by a duly constituted prosecuting authority of the State. On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully accept from Rudolfo Arias, $1,000 in U. S. currency, knowing or believing the money to be the proceeds of an unlawful controlled substance transaction. The original indictment of Mr. Arias was handed down in December 1985, but ended in a mistrial. Mr. Arias was among those defendants reindicted in federal court in 1986. Following the rearrest of Mr. Arias and his incarceration pending trial for his alleged involvement in the Miami River Cops cases in 1986, the court held a bond hearing to determine whether Mr. Arias would be released from jail on bond and, if so, the appropriate amount of bond. Respondent was contacted by Mr. Arias's wife and by his father and asked to testify on behalf of Mr. Arias as a character witness at the bond hearing. Respondent agreed to do so and voluntarily made himself available to the court. His testimony at the bond hearing was not necessary since the court limited the amount of character testimony that would be heard. At no time prior to this bond hearing had Respondent been offered any financial inducement to testify. Following his discharge from jail, Mr. Arias visited Respondent's home and gave to the Respondent the sum of $1,000 and a bottle of whiskey. Mr. Arias testified that the $1,000 was a gift to Respondent and was in appreciation for his being available at the bond hearing and for his willingness to testify. Mr. Arias testified that the money he gave to Respondent was drug money, but that he never told Respondent the source of the funds. Mr. Arias believed that the Respondent should have known that the source of the $1,000 was from drug transactions because he and the Respondent had engaged in general conversations as to ways to make money illegally. Respondent admitted that Mr. Arias gave to him the sum of $1,000 and the bottle of whiskey. Respondent testified that $500 of that sum and the bottle of whiskey were gifts, but that the remaining $500 of the sum given to him by Mr. Arias was in repayment of a loan that Respondent had made to Mr. Arias. Respondent testified that he had previously loaned to Mr. Arias's the sum of $500 so that Mr. Arias's girlfriend could have an abortion without Mr. Arias's wife finding out. Mr. Arias admitted that his former girlfriend had had an abortion, but he denied that he had borrowed money from Respondent to secretly pay for the abortion or that any part of the $1,000 was in repayment of a loan. This conflict in the testimony is resolved by finding that Mr. Arias gave to Respondent the sum of $1,000 and a bottle of whiskey following the July 1986 bond hearing and that at least $500 of that sum was a gift in appreciation for his being available at the bond hearing and for his willingness to testify. The evidence does not establish that the money was in exchange for Respondent's willingness to provide false testimony. Mr. Arias maintained that he was innocent of the charges brought against him until after he had given Respondent the $1,000 in July 1986. Mr. Arias did not admit his guilt to these charges until 1987. While Respondent may have had a reasonable basis upon which to speculate as to the source of the money he had received from Mr. Arias, he was not told the source of these funds by Mr. Arias and he had no direct knowledge as to the source of these funds. It is concluded that there was insufficient evidence to establish that he knew that the funds had been illegally obtained.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Edwin M. Zabala. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. 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 3rd day of July, 1991.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, 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 this 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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 Respondent was certified by Petitioner as a law enforcement officer on December 26, 1989, and was issued certificate numbered 121960. From time to time, the City of Miami Police Department conducts prostitution stings. An undercover female police officer is assigned to be the prostitute or "decoy." She stands at the assigned location. Another undercover police officer acts as "look-out," hiding nearby and watching the "prostitute" until she signals that she has been offered money for sex. She advises the person soliciting prostitution where to drive so they can complete their transaction. Upon her signal, the look-out radios a description of the vehicle and tag number to the "take-down" officers who are in their patrol cars nearby. The take-down officers then stop the vehicle and arrest the person who solicited prostitution. After she gives the signal, the "prostitute" walks over to the look- out, describes the person who made the offer of money for sex, advises what kind of sex was solicited and how much money was offered, and then returns to her assigned location. The look-out radios that additional information to the take-down officers who are making the arrest. On March 2, 1994, the City of Miami Police Department conducted a prostitution sting at S. W. 8th Street and 44th Court, an area with a reputation for prostitution. Officer Kelly Macina was assigned to be the prostitute, Officer Jorge Fernandez was assigned to be the look-out, and Officers Jorge Castano and Carlos Ortega were assigned to be the take-down officers in their patrol cars. The officers were instructed that Officer Macina would tell anyone soliciting her for prostitution to turn into the driveway of Burke's Motel. The motel was located on the corner opposite where she was standing. Prior to March 2, 1994, Officer Macina had only participated in two undercover prostitution operations in the 15 months she had been a police officer for the City of Miami. She had received no formal training in how to conduct a prostitution sting but for a supervisor showing her the statute on solicitation to commit prostitution and telling her to read it. On that evening Respondent was driving home from a club where he had had drinks with some friends. He was driving his black Corvette east on S. W. 8th Street near 44th Court when traffic slowed due to some commotion. He saw a woman standing in the street and saw a patrol car drive up and pull over a vehicle when it drove away from the woman. It occurred to him that he might be observing an undercover operation. He continued to drive by and then noticed two patrol cars parked in an abandoned gas station lot. He thought he recognized the driver of one of the patrol cars as one of his buddies from the apartment complex where Respondent lived. Respondent continued driving to his apartment at Ponce de Leon Boulevard and S. W. 8th Street. When he got there, he changed his clothes, checked his wallet and found that he had only $8, and then left to meet a friend at the pool hall near S. W. 8th Street and Red Road. Driving west on 8th Street, he decided to stop and speak to his buddy whom he thought he had seen in the patrol cars when he earlier drove by the 44th Court area. When he reached 44th Court, he turned right, heading north on 44th Court, made a U-turn, and headed back on 44th Court, heading south. He saw that the patrol cars were no longer at the gas station lot. When he stopped at the stop sign on 44th Court at S. W. 8th Street, Macina approached his vehicle and initiated a conversation. Before Respondent drove away, Macina gave the "take-down" signal. Respondent had given no money or other item to Macina. Respondent turned right on S. W. 8th Street, heading west toward the pool hall. When he had gone approximately 15-25 yards, he saw lights in his rear-view mirror bearing down on him. He pulled over, and a patrol car pulled in behind him. Over a loud speaker, Respondent was told to exit his vehicle, which he did. He was told to come back to the patrol car, which he did. He asked the police officers why he was being stopped and if he was being stopped for speaking to a pretty girl. The take-down officers asked to see Respondent's driver's license. When he opened his wallet, one of them saw a badge and asked Respondent if he were a police officer. Respondent advised them he was a police officer with the City of Coral Gables. The take-down officers exercised their discretion, determining not to arrest Respondent. They told him to leave, and Respondent apologized to them for interfering in their sting operation. Eighteen people were arrested that night. The following day, Officer Macina was asked to give a sworn statement to internal affairs at the City of Coral Gables Police Department. She did not remember what sex act Respondent was alleged to have requested, did not remember how much money was offered for that sex act, and did not remember the conversation she had with Respondent (except that he allegedly had said in response to her questioning that he was married and that his wife was on vacation). By the time of the final hearing in this cause, she had also forgotten which take-down signal she had used that evening.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: Richard Courtemanche, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lawrence E. Besser, Esquire 1925 Brickell Avenue, Suite D-207 Miami, Florida 33129 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent's certification as a police officer should be disciplined for alleged violations of Chapter 943, Florida Statutes.
Findings Of Fact On December 19, 1986, Thomas Barrow was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission, Certificate Number 23-86-999-03. He was initially employed by the Santa Rosa County Sheriff's Department in April, 1986. Barrow has served as a deputy sheriff with three sheriffs. His duties have included at least five years as an investigator for the Santa Rosa County Sheriff's Department. He is currently serving as a corporal with Sheriff Jerry Brown. As a corporal under Sheriff Brown, Barrow is a line supervisor working in the field with the road deputies. Barrow assists the road deputies when questions arise and carries out the orders of his superiors. During Barrow's tenure with the Santa Rosa County Sheriff's Department, his performance evaluations can generally be characterized as above satisfactory or outstanding. Barrow's last evaluation, by Sheriff Brown, rates his performance as satisfactory (the highest rating available); however, both Sheriff Brown and Barrow's immediate supervisor, Lieutenant Joel Lowery, consider him to be a "very effective," and "good" supervisor. Barrow has been disciplined on three occasions as a deputy sheriff. On two occasions, the discipline was voluntarily withdrawn or overturned by the Santa Rosa County Civil Service Board. The remaining disciplinary action was a verbal reprimand for working overtime without authorization. In March, 1991, Barrow was discharged from his position as deputy sheriff by Sheriff E.M. Coffman for conduct unbecoming an employee and mishandling of evidence. Barrow successfully appealed his discharge through the Santa Rosa County Civil Service Board which found his discharge to be without just cause. Barrow was ordered reinstated to his position as deputy sheriff and granted full backpay and restoration of benefits. Corporal Barrow was not formally returned to his position as deputy sheriff until September, 1992. During the period from March, 1991, through September, 1992, Barrow did not visit the Sheriff's Department, have any current knowledge of the activities of the Department's narcotics division, its personnel operating as undercover agents or any narcotics investigations being conducted by the division. It is during the period of Barrow's termination that the allegations of misconduct outlined in the Administrative Complaint arise. Prior to Barrow's termination in March, 1991, he was working in the Sheriff's Department criminal investigations division. Through that duty, Barrow met an individual named Jimmy Joe McCurdy. McCurdy, a longtime resident of Santa Rosa County, was confined in the County jail as a result of a violation of probation for a federal arson conviction. Barrow met McCurdy when he assisted a federal agent in obtaining McCurdy's release on bond as part of a plea agreement. During the summer and fall of 1991, McCurdy would occasionally contact Barrow by telephone about problems he was having. On one occasion, McCurdy asked Barrow to help him correct a problem with a suspended driver's license. On another occasion, McCurdy asked Barrow to locate a vehicle which had been confiscated by the Sheriff's Department. Barrow provided McCurdy with information about how to correct the problem or persons to contact for assistance. McCurdy had somewhat attached himself to Barrow when he needed advice. Barrow did not attach any real significance to the telephone contacts made by McCurdy. They were infrequent, once every four or five weeks, and he had other major concerns at the time having lost his job. Barrow did not socialize with McCurdy, have any business dealings with McCurdy or loan him any money. Barrow was simply trying to pacify McCurdy, who was somewhat paranoid, that "everybody wasn't out to get him." During almost every conversation, Barrow advised McCurdy if he was not doing anything wrong, he did not have to worry. McCurdy always assured Barrow that he was not doing anything wrong. Barrow believed McCurdy because he could not imagine McCurdy or anyone stupid enough to commit criminal acts while on probation, awaiting sentencing for a federal crime, and while helping the federal government on the same matter. In early October 1991, Jimmy Joe McCurdy telephoned Barrow at his home. McCurdy wanted to know if Barrow had found out anything about his confiscated car. Barrow advised him he had not and that McCurdy should contact FDLE about the car. During the course of the conversation, McCurdy told Barrow he felt the County was trying to set him up and that cars were driving by his house. Barrow advised McCurdy that he needed to stay out of trouble. Barrow further advised McCurdy if he was not doing anything wrong, nobody could do anything to him, but if he was doing anything wrong, they would catch him. Finally, during the conversation, McCurdy asked Barrow about a car which had driven by his house and described it to Barrow. Barrow told McCurdy that it could possibly be one which belonged to the Sheriff's Department. At the time of the October, 1991, conversation between McCurdy and Barrow, Barrow did not know the Sheriff's Department was conducting an undercover narcotics investigation of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession and sale of illegal drugs. On the contrary, McCurdy assured Barrow on several occasions he was "staying straight." Had Barrow known of the narcotics investigation, he would not have disclosed to McCurdy the car was possibly an undercover vehicle used by the Sheriff's Department. On the evening of November 8, 1993, Jimmy Joe McCurdy was arrested for the possession of marijuana as a result of a narcotics investigation being conducted by the Sheriff's Department and FDLE. The undercover narcotics investigation had begun in early October, 1991, with Jimmy Joe McCurdy the subject of the investigation. The arrest of McCurdy on November 8, 1991, concluded the investigation. Thomas Barrow was not aware of the investigation of McCurdy by the Sheriff's Department at any time prior to the end of the investigation. During the course of the investigation, the Sheriff's Department became aware of Barrow's comments to McCurdy relating to the possibility of the car being an undercover vehicle. The Sheriff's Department did not contact Barrow to seek his cooperation in not revealing any additional information to McCurdy which might be damaging to the investigation. On the evening of November 8, 1991, after McCurdy was arrested by the Sheriff's Department and the FDLE, McCurdy telephoned Thomas Barrow at his home. The telephone call was made at the request of FDLE. McCurdy was asked to contact Barrow and describe several cars to him. McCurdy agreed to cooperate by making the telephone call. At approximately 10:00 p.m., on November 8, 1991, McCurdy telephoned Barrow. Barrow was already asleep, but answered the telephone. When McCurdy initially brought up the subject of a car, Barrow mistakenly believed that he was speaking about McCurdy's confiscated car and told him he had not been able to find out any additional information about the car. When McCurdy told Barrow he was referring to the possible undercover car from the Sheriff's Department, Barrow indicated it was the type of car driven by Leonard Thomas. McCurdy then told Barrow a man came by earlier in the evening "driving a silver or grey Camaro." Barrow told McCurdy the Sheriff's Department has undercover cars of that kind. During the conversation, McCurdy indicated the driver of the car was "asking a lot of questions" and was concerned whether the County was "out to get him." Barrow advised McCurdy: "No, now just be careful, you know, don't be messing with nothing, of course, you told me you hadn't been messing with anything you told me last time so." On two other occasions in the conversation, Barrow advised McCurdy to "keep it straight" and "stay outta anything." During the November 8, 1991, conversation, Barrow did not know the Sheriff's Department was conducting a narcotics investigations of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession or sale of illegal drugs. Had Barrow believed McCurdy was engaging in the sale of illegal drugs, he would have advised the Sheriff's Department or Charles Layman of FDLE concerning McCurdy's conduct. Corporal Barrow's disclosures of information to Jimmy Joe McCurdy relating to the possibility of vehicles and persons working undercover for the Sheriff's Department were unthinking, incautious and in poor judgment for a law enforcement officer. Barrow acknowledges the errors. The disclosures were not made by Barrow with any intent to obstruct an ongoing narcotics investigation or assist McCurdy in avoiding detection during the investigation. Barrow's family and friends are all involved in law enforcement. Barrow would never jeopardize a law enforcement officer by purposely revealing confidential information. Since the McCurdy incident, Barrow has returned to work with the Santa Rosa County Sheriff's Department. The McCurdy incident has been disclosed to Sheriff James Brown and Barrow's supervisor, Lieutenant Joel Lowery. While these individuals do not consider Barrow's conduct in the matter proper, it has not affected Barrow's performance as a law enforcement officer. Barrow is considered to be a very effective law enforcement officer who exercises good judgment in the field.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against the Respondent. DONE AND ENTERED this 23rd day of March, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-7100 The facts contained in paragraphs 1-4, 7-9, 95, 96 and 103 of the Petitioner's proposed findings of fact are adopted in substance, insofar as material. The facts contained in paragraphs 12-19, 25, 32, 33, 35, 42, 50, 63, 64, 69, 74-76, 78, 81-84, 88, 89, and 93 of the Petitioner's proposed findings of fact were not shown by the evidence. The facts contained in paragraphs 5, 6, 10, 11, 20-24, 26-31, 34, 36- 41, 43-49, 51-62, 65-68, 70-73, 77, 79, 80, 85(a)&(b)-87, 90-92, 94, 97-102, and 104-118 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1-24 of Respondent's proposed findings of fact are adopted in substance, insofar as material. COPIES FURNISHED: Monica Atkins-White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 Gene "Hal" Johnson, Esq. 300 East Brevard Street Tallahassee, FL 32301 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esq. General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489
Findings Of Fact At all times pertinent to the allegations herein, the Respondent, Darrell B. Daniels, was certified as a Law Enforcement Officer by the Criminal Justice standards and Training Commission having been issued certificate number 02- 34831, on December 2, 1983. At approximately 10:30 PM on July 31, 1985, seventeen year old Marta Stowell was picked up from work at a Tampa shopping center by her boyfriend, twenty-two year old Terry Hickock, and the two drove to a public beach located along the Courtney Cambell Causeway, in Tampa, in her car, arriving at approximately 11:00 PM, and parking behind some bushes in a wooded area of the beach. They then began necking which escalated into heavier contact and as a result, the parties moved into the back seat and disrobed. A short time later, they heard the approach of a car which stopped a short distance behind their vehicle. A few moments later, an individual with a flashlight came up to the car door and shined the light through the closed window on them. The person also tapped on the window and said, "Hello, there." The individual with the light appeared to be a uniformed police officer and the car he was driving was a police car. This individual, who the parties identified as Respondent, instructed them to open their car door and they complied. He then advised them that because they were nude, they were committing an illegal act in a public place. Respondent asked them their ages and when Ms. Stowell told him she was seventeen, he told them he was going to have to arrest her boyfriend for contributing to the delinquency of a minor. He also indicated he might have to place Ms. Stowell in a juvenile detention center and inform her mother of her conduct. Ms. Stowell was very upset at this prospect and began crying and begging Respondent not to arrest her boyfriend. In response to her pleas, Respondent told the couple, who had not yet been permitted to get dressed, that he felt sorry for them and thought he might be able to think of a way to get them, "off the hook." Respondent then walked over to his police car for a moment and then returned, kneeling at the open door, approximately an arm's length from Ms. Stowell. He told them he would let them go if they would "embarrass" themselves in his presence, and advised them to continue what they had been doing before he interrupted, while he watched. At the Respondent's direction, Ms. Stowell and Mr. Hickock then resumed the oral sex in which they had been involved when interrupted, for approximately eight to ten minutes, switching positions after a few minutes, while Respondent watched the entire time from a few feet away. While this was going on, Ms. Stowell felt degraded by being required to commit the act in front of a stranger and participated in it against her will only to prevent Respondent from arresting her boyfriend and from notifying her mother. While the couple was engaged in oral sex, Respondent, according to Ms. Stowell, touched her thigh, put his hand in her crotch area, and penetrated her vagina with his finger, all without her consent. Respondent then advised the couple he wanted them to engage in intercourse and when they told him that they had never done that before, he advised them that their choice was either to do as he said or he, Respondent, would have intercourse with Ms. Stowell. As a result, the parties tried to engage in an act of intercourse while Respondent watched but were unsuccessful. Respondent again threatened to have intercourse with Ms. Stowell but, apparently, decided against it. Though she had not previously engaged in intercourse with Mr. Hickock, Ms. Stowell agreed to attempt the act with him because she was fearful of the threat by Respondent to engage in intercourse with her if she did not perform with Mr. Hickock. When it became obvious that Stowell and Hickock were not going to be successful, Respondent took down Stowell's and Hickock's names, phone numbers, and home addresses. He then warned them not to tell anyone what had happened and not to acknowledge that they had seen him. He advised them that if they told anyone of what had happened, he would arrest Mr. Hickock. Respondent then got back in his patrol car and left the area. Between 7:00 and 8:00 AM the following morning, Ms. Stowell received a phone call at home from Respondent. He told her something had gone wrong with her tag number and that she must meet him to talk about what could be done about it. He said he would be in his civilian clothes driving his personal car, and she agreed to meet him at a local shopping mall she suggested. She did not show up, however, because she was afraid of being raped by him. Instead of meeting with Respondent, Ms. Stowell told her parents about the beach incident the night before and, thereafter reported the matter to the Tampa Police Department. The case was assigned to Detective Jerry Herren, who, during the course of his investigation, took a sworn statement from Mr. Hickock about the incident. Approximately two months later, Mr. Hickock was killed in a traffic accident. A few days after taking this statement, and based on information discovered during the investigation, on August 8, 1985 Herren arrested Respondent for the offenses outlined in the complaint. Subsequent to the arrest, Herren advised Respondent of his rights against self incrimination and took a statement from him in which Respondent admitted to having contacted Stowell and Hickock at the causeway on July 31, 1985, and having contacted Ms. Stowell the next day to ask her to meet him when he was off duty. He denied, however, that he had in any way threatened her or that he had touched her. His denial, however, was somewhat weakened by the statement of Gail Perry, who complained that on July 19, 1985, she had been involved in an incident with Respondent similar to that alleged by Ms. Stowell. In the Perry case, there was no touching, but there was an offer by Respondent to "forget about" Ms. Perry's lascivious misconduct if she would perform an act of fellatio on him. In the Perry case, as in the Stowell case, Respondent secured his victim's home phone number and the following morning, called in an attempt to obtain a date. Respondent thereafter admitted to Herren that he contacted Ms. Perry both while she was with her boyfriend and again, by phone. Respondent declined to testify or present any evidence in his own behalf. He made an argument, or summation, which contained statements of apparent fact, but, since the information was not produced under oath as evidence, it cannot be considered as evidence in opposition to the matters presented by the Petitioner. Consequently, the testimony of Ms. Stowell and that of the police officers who investigated her complaint is uncontradicted and it is found that, as alleged, Respondent committed a sexual battery on Ms. Stowell and used his position as a police officer in an improper manner in an effort to get her and Mr. Hickock to engage in sexual activity in his presence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's certification as a law enforcement officer be revoked. RECOMMENDED this 6th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of February, 1989. COPIES FURNISHED: Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel P.O. Box 1489 Tallahassee, FL 32302 Joseph S. White, Esquire Assistant General Counsel Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Darrell B. Daniels P.O. Box 310683 Tampa, FL 33680
The Issue The issues in this proceeding are whether the Petitioner has violated provisions of Florida Statutes relating to the certification of police officers as alleged in the Administrative Complaint, and, if so, what penalty should be imposed by the Commission.
Findings Of Fact The Respondent is certified with the Criminal Justice Standards and Training Commission as a law enforcement officer. He holds Certificate No. 02- 16422. From approximately March, 1976, until August, 1981, the Respondent was employed with the City of Orlando as a police officer. On or about August 11, 1981, the Respondent was on duty as a uniformed police officer during the midnight shift. He was riding in a patrol car with another officer. The two officers observed a pickup truck in a parking lot with a white male in the driver's seat and a black woman in the passenger's seat. The Respondent identified the woman as a "known prostitute." The officers drove into the parking lot to investigate. The woman jumped out of the truck. She had a gun in her possession. The two officers successfully apprehended her. In the meantime, the driver of the truck had wandered away. The other police officer left the area, looking for the man. It took the other officer approximately five minutes to apprehend the man, who was quite intoxicated. During this time, the Respondent was alone with the woman. She appeared intoxicated or drugged. She inferred that Respondent should release her, unzipped his pants, and grabbed his penis. Respondent wanted to make a case against her on this basis. He called out to his partner in an effort to get his attention to come witness the incident, but was unable to reach him. Respondent withdrew from the woman and came to the conclusion that he could not make a case against her for the incident because of the lack of an additional witness. Approximately a year before this incident, Respondent was working in uniform as an off-duty policeman at a lounge. He met the same woman involved in the later incident. After he finished his duties and changed clothes, he had a sexual encounter with her. The encounter was not an act of prostitution. On August 11, the Respondent arrested the woman for being a felon in possession of a firearm. The next morning, the woman complained that the Respondent had agreed to do something about the arrest if she performed oral sex on him. An investigator with the police department's Internal Affairs Division interviewed the woman. The investigator then interviewed the Respondent. At the initial interview, the Respondent denied ever having had a sexual liaison with the woman. Two days later, the Respondent contacted the investigator and said he remembered some additional facts. In a second interview, the Respondent admitted having had sex with the woman on the earlier occasion. He continued to deny having had sex with her on August 11, 1981. He conceded, however, that she may have touched him in the area of his genitals while pleading for him not to arrest her. Later on that same day, the Respondent again contacted the investigator and said that he had more to say. A third interview was conducted, and the Respondent admitted that the woman committed the act as set out in Paragraph 2 above. During this time, the Respondent was experiencing personal difficulties. His contradictory statements to the investigator were in part the result of anxieties about his job and his personal life. The State Attorney's Office in Orange County ultimately declined to prosecute the possession-of-a-firearm case against the woman on account of the potential embarrassment that the Respondent's testimony could have. The Respondent's employment with the police department of the City of Orlando was terminated in August, 1981. He has not been employed in the law enforcement field since that time.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint dated May 12, 2000, and filed March 11, 2003, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, St. Amand was a certified law enforcement officer employed as a detective by the North Miami Beach Police Department. St. Amand occupied a position of the highest trust as a member of the detective bureau. He abused that trust by engaging in repeated acts of lewd behavior in the workplace. The nature and quantity of the behavior was sufficient to provoke complaints to the Dade County State Attorney's Office which resulted in an investigation concerning sexual harassment and indecent exposure. In the course of that investigation, St. Amand compounded his offenses by lying consistently and repeatedly to investigators. Five witnesses, all of whom were entirely credible, testified in detail regarding incidents they had witnessed in which St.Amand masturbated, or simulated masturbation, at work. One such incident took place in the community patrol office. St. Amand's semen was collected from the carpet in that office. One of his former partners in the family violence unit said it was "second nature" to St. Amand to grope himself, simulate masturbation, and make vulgar comments. He did so in front of male as well as female colleagues. St. Amand falsely denied under oath that any of the incidents his colleagues testified to ever happened. Florida law requires, as a minimum qualification for its law enforcement officers, that they be of good moral character. Florida law further provides that law enforcement officers who lack good moral character, or who make false statements under oath, may be stripped of their license to serve in law enforcement. The public has every right to expect that those who serve and protect will do exactly that--not harass and embarrass colleagues and citizens who are conducting business in tax- supported buildings. St. Amand's conduct did substantial damage to his colleagues' morale, and to his department's reputation for professionalism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that St. Amand's law enforcement certificate be permanently revoked. DONE AND ENTERED this 16th day of June, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 16th day of June, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Fred St. Amand, Jr. 2429 Northwest 184 Terrace Pembroke Pines, Florida 33029 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
