The Issue Whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2009), and Florida Administrative Code Rule 11B-27.004(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was a certified law enforcement officer, certified by the CJSTC. At the time relevant to the Administrative Complaint, Respondent was acquainted with a person named Terrence Hicks. Mr. Hicks was apparently involved in some business dealings with a Mr. Brichler. In connection with these business dealings, Mr. Brichler had possession of several motorcycles owned by Mr. Hicks. Respondent accessed information regarding Mr. Brichler from a secure Florida Department of Highway Safety and Motor Vehicles DAVID system on two different occasions: Friday, September 26, 2008, and Monday, October 27, 2008. Respondent was not working on any investigation regarding Mr. Brichler at the time he accessed the DAVID system. No traffic citations, field contact cards, or offense reports regarding Mr. Brichler were generated by Respondent or any other deputy. After the second time he accessed the system, on or about November 3, 2008, Respondent went to Mr. Brichler's home to inquire about the motorcycles. Based upon his conversation with Mr. Brichler, Respondent claims that he determined that the dispute between Brichler and Mr. Hicks was civil in nature, and he generated no complaint or paperwork as a result. At the time he visited Mr. Brichler's home, Respondent was off duty. However, he was in uniform and arrived at the home in a marked, county-issued vehicle. Mr. Brichler contacted the Volusia County Sheriff's Office in or about February 2009, stating that Respondent had come to his home in November 2008 and identified himself as Deputy Sanchez. Mr. Brichler claimed in his complaint that the officer coming to his house provided him with a business card bearing the insignia for the Volusia County Sheriff's Office, with the office's address and telephone number. The card had a line stating, "Presented By:" followed by a blank line, with the words Deputy Sheriff written underneath. Written on the blank line was "Deputy Sanchez." According to the police report, there is no Deputy Sanchez that has worked or does work for the Volusia County Sheriff's Office. The complaint indicates that Brichler realized that the person identifying himself as Deputy Sanchez was actually Respondent, because he read an article about two deputies that had been arrested for racing motorcycles, and the photograph of one of the deputies was of Respondent, identifying him as Deputy Lopez. He supplied the business card with Deputy Sanchez written on it to Deputy Turner, who investigated his complaint. Respondent admits accessing the DAVID system to gain information on Mr. Brichler, and admits going to his home to ask about the motorcycles. With respect to the business card, Respondent states that it was a blank, generic business card provided by the sheriff's office. Mr. Brichler did not testify in this proceeding. During his interview with Deputy Turner, Respondent denied giving Mr. Brichler a business card with "Deputy Sanchez" written on it. He admitted accessing the DAVID system and going to Mr. Brichler's house.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Criminal Justice Training and Standards Commission enter a Final Order: dismissing the Administrative Complaint in Case No. 11-1236PL; finding that Respondent failed to maintain in violation of section 943.1395(7), as defined in rule 11B-27.0011(4)(c)2.,; and suspending his certification for a period not to exceed five days. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of August, 2011. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Omar Lopez Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent is guilty of deliberately setting his motor vehicle on fire on school grounds and then fraudulently concealing that he did so and whether such conduct is an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes; personal conduct that seriously reduces the effectiveness of a school board employee, in violation of Section 231.28(1)(f), Florida Statutes; and in derogation of the following three provisions of the Principles of Professional Conduct for the Education Profession in Florida, in violation of Section 231.28(1)(i), Florida Statutes: the requirement of making a reasonable effort to protect a student from conditions harmful to learning or to protect the student's mental health or physical safety, as required by Rule 6B-1.006(3)(a), Florida Administrative Code; the prohibition against exposing a student to unnecessary embarrassment or disparagement, as prohibited by Rule 6B-1.006(3)(e), Florida Administrative Code; and the requirement of maintaining honesty in all professional dealings, as required by Rule 6B-1.006(5)(a), Florida Administrative Code.
Findings Of Fact Respondent has held Florida Educator's Certificate 751546, which covers Spanish, since 1995. The certificate expires June 30, 2002. Since his arrival in Florida in 1995, Respondent has taught Spanish at Cypress Lake High School in Lee County. He taught continuously in this position until terminated on or shortly after April 19, 1999, for the incident described below. Respondent was a popular and effective teacher. He enjoyed good rapport with his students and their parents. He volunteered to run the school Spanish club and helped at football and basketball games. On the morning of April 19, 1999, Respondent drove his 1997 Toyota 4Runner SR5 to work. Respondent claimed that the sport utility vehicle had not given him problems, and he had not had any problems making the payments on the car loan secured by the vehicle. On his way to work, Respondent stopped in a gas station and filled up the tank. He paid for the gasoline with a debit card and proceeded to drive to Cypress Lake High School where he taught. Respondent arrived at Cypress Lake High School at about 6:00 a.m. He parked in the front of the building. He normally parked in the back of the building, but there was some construction activity that had taken place in the rear parking area. Respondent walks with the assistance of a cane, and he would likely avoid debris-filled or disorganized parking areas. At 6:00 a.m., Respondent would unlikely encounter any staff at the school except kitchen staff, who parked in the rear. Three or four teachers, including Respondent, typically arrived by 6:00 a.m., but the great majority of the teachers arrived significantly later. The teachers' day ran from 7:00 a.m. until 2:30 p.m. Likewise, students would not arrive until after 6:30 a.m. The first school bus arrived at 6:40 a.m., but most of the buses did not arrive until 7:00 a.m. School started at 7:20 a.m. Arriving at 6:00 a.m., Respondent thus joined on the campus no more than a couple of teachers, some of the kitchen staff in the back, and no students. On the morning in question, Respondent took some materials into the office to copy. He had not been inside for very long when a janitor, who was performing his morning trash- collection duties, saw that Respondent's parked vehicle was on fire. Proceeding to the main office, the janitor encountered Respondent and informed him that his vehicle was on fire. Respondent expressed surprised disbelief. In fact, Respondent was not surprised. Under Petitioner's version of events, Respondent was not surprised because he had set the fire himself. Under Respondent's version of events, he was not surprised because, after he had entered the building, he discovered someone setting fire to Respondent's vehicle. Respondent testified that he had found the library locked, so he was walking to another area to do his copying and drop off his briefcase in his classroom. As he walked by a point from which he could see his parked vehicle, Respondent noticed that the rear right door was open. Respondent testified that he walked directly to his vehicle. As he approached, he smelled gasoline. He then saw a young man on the left side of the vehicle with shoulder-length brown hair and dressed in camouflage beside the car. The man saw Respondent and shouted, "Fuck you, teach." The vehicle then burst into flames, as Respondent was standing on the right side of the vehicle. The man then warned Respondent, "If you tell, your wife and family are next." After uttering this warning, the man ran into the school building and turned down a hall. Respondent testified that he had never seen the man before or since and did not know his identity. The different versions of events coalesce at this point. Authorities summoned to the school extinguished the fire prior to the principal's arrival at school around 6:23 a.m. However, the fire had extensively damaged the vehicle, whose interior had been consumed by flames. Despite the intensity of the flames, which required foam rather than water to extinguish, the first firefighter on the scene testified that the fire had not really been dangerous and that the vehicle's location was well away from the building and any other vehicles. Given the early hour of the fire, only a couple of onlookers were present during the blaze, and they were not students. The first firefighter on the scene is also a deputy sheriff with the Lee County Sheriff's Office. Having noticed a container in the front seat of the vehicle, the firefighter asked Respondent, who was standing by, if anyone might be mad at him. When Respondent said no one was mad at him, the firefighter explained that he had found a container on the passenger side. Respondent asked if he could approach the vehicle and look inside. When the firefighter agreed that he could, Respondent walked around the nearer right side of the vehicle, whose windows were smoky, and approached the left side of the vehicle, whose windows had been broken out. Having crossed in front of the vehicle, Respondent passed up an opportunity to peer into the driver's window, choosing instead to look into the left rear window. In looking in the left rear window, Respondent saw another container that had been behind the driver's seat, but which the firefighters had not yet found. Respondent explained that he had wanted to look through a window that gave him a view of the front, middle, and back of the interior. However, no one had restricted the number or location of views that he could take of the interior. Respondent then returned to the firefighter, who said that they would conduct an investigation and that Respondent should remain available. Respondent testified that he believed that the investigators would dust the vehicle for fingerprints, and then they would discover the identity of the person who had burned the vehicle. Respondent explained that he did not wish to countermand the order of the arsonist by identifying him or doing anything that would assist the authorities in capturing him. A short while later, after being summoned to the principal's office, Respondent told the principal that "someone apparently torched" the vehicle. Respondent did not assert that a student had set the fire. After speaking with the principal, Respondent returned to the parking lot to speak with the firefighter and an arson investigator from the State Fire Marshall's Office. Upon his arrival, the arson investigator had taken samples from the two containers: one in the front passenger area and one in the right rear passenger area. These samples later proved that the containers, which were large, plastic water jugs, had contained gasoline. The arson investigator did not take a sample from a third jug, which appeared to be the type of jug used to transport swimming pool chlorine. The arson investigator analyzed the burn marks in the interior and determined that the fire started with gasoline in the driver's area, where the damage was greatest. Lacking any evidence of other forms of ignition, the investigator determined that the fire ignited with an open-flame device, such as a lighted match or lighter. The arson investigator asked Respondent some preliminary questions concerning his ownership of the vehicle, whether he had had any problems with the vehicle or with any persons, and how he had learned of the fire. Noticing that his right pant leg had been slightly singed by fire, the investigator asked if Respondent had been near any open flames recently. Respondent replied that he had not. The investigator asked if he could examine Respondent's right hand. After Respondent extended his hand for examination, the investigator noticed that the hair on the hand had been singed and rolled up or beaded, as though it had had contact with accelerent and flame. At this point, the arson investigator informed Respondent of his observations on the pant leg and hand. He asked Respondent if he would prefer to avoid the embarrassment of further interrogation at the school and instead join the investigator at a nearby sheriff's office substation. After Respondent agreed to join the investigator at the substation, the investigator summoned a sheriff's deputy to transport Respondent to the substation. A few minutes later a deputy, in a marked patrol car, arrived at the school and transported Respondent, unhandcuffed, to the substation. Respondent arrived at the substation first. He went to the restroom and removed his socks, replacing them in a way as to conceal a hole that had been burned in one sock, just above the loafer on his right foot. In fact, Respondent had suffered a painful burn on his right foot while standing by the driver's door of his vehicle and starting the fire. At the substation, the arson investigator was joined by the firefighter who had allowed Respondent to view his vehicle and another firefighter, who was also a representative of the State Fire Marshall's Office. The three men then led Respondent into an interview room off the main lobby. The arson investigator summarized the evidence against Respondent and warned him, "We can do this the easy way or the hard way." He added that, if Respondent cooperated, they could go to the state attorney and judge and explain that Respondent had been cooperative. The arson investigator then read Respondent his Miranda rights, and Respondent responded, "I think I'm going to need a lawyer." The arson investigator and firefighter immediately left the interview room. The other representative of the State Fire Marshall's Office remained in the interview room and spoke with Respondent. The record is undeveloped as to the contents of their conversation. However, after about 20 minutes, Respondent stated that he wanted to speak to the arson investigator. When the arson investigator and firefighter returned to the interview room, Respondent asked to speak a few minutes to the arson investigator alone, and, following this conversation, Respondent agreed to give a statement, although no one again read him his Miranda rights. In an Order Granting Defendant's Motion to Suppress filed on September 26, 2000, in Lee County Circuit Court Case No. 99-1314CF, the trial judge determined that Respondent's Miranda rights had been violated. The court noted that the transporting of Respondent to the substation, rather than questioning him at the school, effectively placed Respondent in custody by the time that he reached the substation, as he had no way to get back to school. The court noted that the record demonstrated that two of the law enforcement officers continued to communicate with Respondent after he had invoked his Miranda rights. The court also noted with disapproval the summarizing of the evidence against Respondent, which the court characterized as suggesting the details of the crime. The statement inculpates only Respondent, who states that he set the fire after purchasing the gasoline and filling the jugs on his way to school that morning. The closest that the statement comes to an explanation of motive is a statement from Respondent: "I think I need psychological help. I really don't remember doing what I did." In the meantime, back at school, most persons were talking about the incident. Despite the fact that no one had suggested that a student had set the fire, the school was consumed with rumors that a student had done so. Other teachers were upset at the possibility that a student had done this act and were concerned for their safety. Students were distracted all day by the rumors. The principal did what he could do to get people back on task. Later in the day, a representative of the sheriff's office called the principal and informed him that Respondent had been arrested. The principal disseminated this information, which greatly eased the anxiety of the teachers. Still later in the day, Respondent called the principal and said, "I'm sorry." He did not specify for what he was apologizing. He asked the principal to bring his cell phone and briefcase from school to him at the county jail. At Respondent's request, the principal then called Respondent's wife and informed her that her husband had been arrested for setting his vehicle on fire. She responded that she lacked transportation, but would try to get to the jail. A single article in the local newspaper covered the story the following day. The article noted Respondent's arrest and some of the details of the incidence. There were no other news stories in any media concerning this incident, even when Respondent was sentenced. There was no public reaction to the incident either. Teachers and students remained concerned for Respondent's welfare. The only letter from a parent was supportive of Respondent and opposed his termination, which happened anyway. Without regard to Respondent's statement at the substation, the record demonstrates clearly and convincingly that Respondent burned his own vehicle. The facts are clear and convincing without Respondent's testimony at the hearing, and they are clear and convincing with his testimony at the hearing. Without Respondent's testimony, the facts are that Respondent's late-model vehicle burned in the school parking lot one morning before school. A few minutes later, Respondent bore marks of close proximity to fire on his right hand and right pant leg, despite denials of having been near an open fire recently. The morning of the fire, Respondent had fueled his vehicle. With Respondent's testimony, the facts are that Respondent burned his vehicle and then invented a bizarre story an unknown assailant, for no apparent reason, torched Respondent's vehicle and then threatened harm to Respondent's family, unless Respondent remained silent. In a dated expression, the assailant spoke of a teacher as "teach." The assailant's implicit promise not to harm Respondent's family, if Respondent remained silent, was somehow trustworthy to Respondent, despite the irrationality of this man. And, despite the threat to Respondent's family, Respondent first called the principal, rather than his wife and warn her that some lunatic was on the loose who, if he could not be trusted, might attack her and their family. Eventually, Respondent pleaded no contest to criminal mischief, a misdemeanor. The court withheld adjudication and sentenced Respondent to one year's probation (with early termination after six months), court costs of $209, a fine of $150, and counseling, which he has completed. Respondent wisely never filed a claim for insurance proceeds.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order suspending the educator's certificate held by Respondent through July 2, 2002. DONE AND ENTERED this 31st day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 31st day of October, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards, Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capital, Suite 1701 Tallahassee, Florida 32399-0400 Bruce P. Taylor Attorney for Petitioner Post Office Box 131 St. Petersburg, Florida 33731-0131 Robert J. Coleman Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902
The Issue The only issue remaining in this case is the extent to which the Petitioner, the Department of Transportation (DOT), should penalize the Respondent, Keystone Excavators, Inc. (Keystone), for operating a commercial motor vehicle with an expired vehicle registration and for exceeding the maximum legal weight of 35,000 pounds allowed under Section 316.545, Fla. Stat. (1987).
Findings Of Fact On July 8, 1987, one of Keystone's commercial motor vehicles was operating on Interstate I-4 near Plant City, Hillsborough County, Florida, with a registration that expired on May 31, 1987. According to the DOT scales, the weight of the vehicle, loaded, was 82,520 pounds. The DOT's Form 509-13, Revised 1/86, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the DOT interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1987), that for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight. When Keystone last registered the vehicle in question, it obtained a six-month registration instead of an annual registration. As a result, the registration expired May 31, 1987. For some reason, the sticker stating the month of expiration of the registration was not put on the vehicle's registration tag. Through inadvertent oversight, Keystone failed to renew the registration on the vehicle. When the DOT discovered the violation, it fined Keystone $2,376, calculated as 5 cents for each pound the vehicle weighed over 35,000 pounds. Keystone paid the fine under protest, taking the position that the fine was excessive under the circumstances. On the same day, after the DOT citation, Keystone paid a late fee and renewed the vehicle's registration for the period from May 31, 1987, forward. Keystone's evidence proved that Keystone did not intentionally violate the vehicle registration laws in this instance. Keystone does not intentionally violate the applicable laws and attempt to avoid or escape detection of violations. Nor does Keystone conduct business in a reckless or careless manner with respect to compliance with the applicable laws and treat penalties for detected violations as a cost of doing business. Notswithstanding this violation, Keystone generally has a good record for operating safe and properly licensed and permitted vehicles. The violation in this case resulted from an isolated case of inadvertent oversight. Keystone requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Keystone's request on August 13, 1987, and denied it by letter dated August 18, 1987. Keystone then requested a rehearing. The Review Board met on December 8, 1987, and denied rehearing by letter dated December 14, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order reducing the fine against Keystone to $750. RECOMMENDED this 2nd day of May, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of May, 1991.
The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, 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
Findings Of Fact William B. Barker, Jr., is certified as a law enforcement officer in the State of Florida employed by the Walton County Sheriff's Department and stationed at DeFuniak Springs, Florida. On or about 20 June 1981, Diana Marie Preston was driving her automobile west on Interstate Highway 10, in Walton County, Florida, on her way to her grandparents' home in Gulf Breeze, Florida. She had just completed the Law School Admissions Test in Tallahassee that morning and was on her way back home. Due to heavy rain in the area, she was driving carefully and was not exceeding the speed limit. At approximately 3 to 4 p.m., she was hailed by a police officer in a county police car. When she pulled over to the roadside at his request, the officer advised her she had been speeding and requested to see her driver's license. Since her license was in her purse which was in the trunk of her car, she had to get out of her car and open the trunk, at which time the officer noticed a pair of high-heeled shoes she had in there and asked her to take them out, indicating he had been looking at a pair like that for his wife. When Ms. Preston got her license out, the officer requested that she accompany him to his car, get in on the passenger side and close the passenger door. She complied, though she did not close the door completely. During this period, she noticed that though the officer was in uniform, he was not wearing either a name tag or a badge with a number on it. She does not recall whether he was wearing a pistol, but states there was a rifle in the vehicle on which he placed his hand several times while talking to her. The officer took Ms. Preston's driver's license and reached across her to the glove compartment for his ticket book, but at no time did he use his radio to call in either her driver's license number or her car tag number. Before writing out the ticket, the officer indicated he would not issue a ticket to her if she would put on her high heels (she had been driving barefoot) and let him try to guess her shoe size. He stated that for every size he was off in his guess, he would kiss her foot a certain number of times. Ms. Preston repeatedly refused, but because the officer was insistent and she felt she was in a difficult position due to the fact that she was alone on a lightly travelled (at the time) section of highway, she ultimately acquiesced. Though the officer had ample opportunity to see the shoe size when he examined the shoes, he guessed wrong on the size by several sizes. At this time, her left foot was in his lap, and he picked it up and kissed it several times. When he was finished, in the course of conversation, the officer asked her what she had been doing in Tallahassee. She told him she had been taking the LSAT, and his attitude changed immediately. He told her to go on with her trip, but cautioned her not to tell anyone what had happened, as he could get into trouble. Upon being released by the officer, Ms. Preston proceeded on to Gulf Breeze to the home of her grandparents, whom she told about the incident the following day. She did not report the incident to the police nor discuss it until several weeks later when she was contacted by two investigators who showed her a large photograph of individuals who, it was represented to her, were members of the Walton County Sheriff's Department. From this group, she identified the Respondent, Barker, and subsequently again identified him at the hearing as the officer in question, describing him as a heavyset man with a mustache and wearing tinted glasses. Respondent, upon graduation from high school, attended O. W. Junior College and then went on to the University of West Florida where he received his bachelor's degree in criminal justice. He unequivocally denies the allegations against him, stating he had never seen Ms. Preston until the day of the hearing at the hearing room. In fact, his shift was over, and he signed out just prior to 3 p.m. on 20 June 1981. In his opinion and that of his mother, the allegations against him are attributable to his stated position in a political dispute during which he sided against the incumbent sheriff for whom he was working. There is no evidence bearing on this issue other than the testimony of the Respondent and his mother.
Recommendation From the foregoing, it is concluded that the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent is guilty of the allegations contained in this Administrative Complaint. It is RECOMMENDED: That the Criminal Justice Standards and Training Commission issue a final order dismissing the Administrative Complaint. ENTERED this 24th day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
