Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Criminal Justice Standards and Training Commission, (Commission), was and is the state agency responsible for the certification of law enforcement officers in this state. The Respondent, Douglas E. Szczepanik, was and is certified in Florida as a law enforcement officer. Late on the evening of August 22, 1988, Respondent was employed as a police officer with the Delray Beach, Florida, Police Department, (Department). While at the hospital with Officer Eberhart collecting a blood specimen from a third person for use in another police matter, he heard a police radio call relating to the hot pursuit of a felony suspect. He and Eberhart went to the scene of the expected apprehension and found that the suspect had been apprehended after a high speed chase by several police cars including one driven by Officer Thomas A. Whatley. It was subsequently determined that the suspect had lost control of his vehicle, a stolen car, and had ended up abandoning it on the city's municipal golf course adjacent to West Atlantic Avenue. He then ran off on foot across the course with Officer Whatley in pursuit in his police cruiser. The suspect ran up a hill and down the other side. Whatley, surmising that the hill was no more than that, and that the other side of the hill was a down slope, drove up the hill after the suspect at a speed of approximately 45 to 50 mph. As he reached the crest, he found that he was on the lip of a sand trap and since he could not stop, his car became airborne, coming to rest some 25 - 30 feet further along, in the sand trap. Though it did not bear significant outward signs of damage, the vehicle was, in fact rendered inoperable as a result of the impact. Fortunately, the suspect was apprehended by other officers on the scene. As a result of the serious nature of the suspect's alleged crimes, suspected murder of an officer and car theft, many Delray Beach officers were involved in the chase and were, therefore, on the scene at the time of the apprehension and Whatley's vehicular mishap, including his Lieutenant, Woods, and his patrol sergeant, then Sergeant Musco. Lt. Woods directed Sgt. Musco to block traffic on Atlantic Avenue and another officer to get the damaged vehicles towed away. He directed Respondent, then at the scene, to write the traffic accident report relating to Whatley's car. There is some indication that initially Woods did not think a report was necessary, but he ultimately became convinced it was and gave the job to Respondent. Since both Respondent and Eberhart were traffic investigators, Eberhart indicated he would do it and Respondent acquiesced. Respondent and Eberhart both discussed the accident and both developed their own theory as to how it happened. Neither, however, bothered to question Whatley who remained at the scene for some time before being directed to resume patrol, using Respondent's cruiser. Even when that was being set up, Respondent did not question Whatley as to what had happened, speaking to him only to caution him not to lose his keys when he turned them over to him. Based on their examination of the scene on Atlantic Avenue, and without even looking at Whatley's vehicle and where it ended up, Eberhart concluded that the accident occurred when the suspect lost control of his vehicle and ran into Whatley's forcing him to lose control and run up the side of and into the sand trap. Had Eberhart bothered to look at the vehicle, he would have seen no body damage consistent with collision. Eberhart was subsequently convinced by Respondent, who did look at Whatley's vehicle, that an alternative theory, indicating that the suspect lost control of his vehicle and prompted Whatley to lose control of his in an effort to avoid a collision, was what happened. In any event, Respondent claims that later that evening, back at Police Headquarters, he saw Whatley attempting to write out his report. Whatley allegedly asked Respondent for help in writing it since he was relatively new to the force and this was his first accident. Respondent also claims that he merely told Whatley the format for the report and the type of information to put in it. He admits that, as an example of what to say, he told Whatley his theory of the accident. When Whatley indicated that was not how it happened, Respondent allegedly told him, then, to write in what did happen as he, Whatley, recalled it, and he denies suggesting that Whatley use his scenario if it was not correct. Whatley, on the other hand, claims that while they were still at the scene of the accident he talked with Respondent and told him what had happened. Respondent supposedly walked around the wreck and then told Whatley to put in his supplement to the accident report that he had been taking evasive action. When Whatley told him that was not the way it happened, Respondent is alleged to have said that the people "upstairs" wanted police accident reports to reflect no fault on the part of the officers. Whatley claims that Sgt. Musco was present at the time but Musco does not profess to have heard that and Respondent categorically denies that Whatley told him at the scene how the accident occurred or that he went to the sand trap to look at the vehicle. In a statement made to Captain Schrader in November, 1988 as a part of the Internal Affairs investigation, Respondent again denied he spoke with Whatley at the accident scene. No evidence was presented by the Petitioner as to what benefit Respondent would gain or what detriment he would avoid by telling Whatley to falsify his supplement. Musco claims that when he first saw Whatley, he appeared depressed about the incident and Musco told him to write it up as it had happened and not to worry about it because he, Musco, was not worried about the car. When Respondent, who Musco had assigned to write up the report, said he was going to show it had happened when Whatley attempted to avoid an accident, Musco told him to write the report honestly as he had been trained to do, and as Whatley had reported it. Musco did not follow up to see if the report or Whatley's supplement thereto was prepared properly. Since he had assigned the duty to a trained traffic/homicide investigator, (Respondent), he presumed it was done correctly. He knows of no policy to falsify reports of police accidents and in fact has had an accident himself, in which he was at fault, and which was written up accurately. Respondent claims that after he spoke with Whatley at Police headquarters and told him to write the report honestly, he left and met Lt. Woods outside. He told Woods that Eberhart was going to write the accident report and that Whatley was going to write his supplement honestly. Woods reportedly responded that was no good because he had already told everyone it had happened because of Whatley's attempt to evade the suspect's car. Because of that, even though Woods did not give him any instructions to do so, Respondent claims he went back inside and told Whatley to write his supplement the way he remembered it. Respondent claims that at no time did he ever tell Whatley to write a false report. He also claims that he never made the statement attributed to him regarding the people "upstairs." He would have nothing to gain or to lose by convincing Whatley to falsify his supplement. After getting advice from Respondent and from Sgt. Musco, Officer Whatley, for some reason, wrote his supplement indicating he had the accident in an attempt to evade the suspect's out of control vehicle. Whatley cites two meetings with Respondent that evening, as does Respondent, but their stories of what transpired differs radically. Whatley claims that Respondent told him to make sure his supplement conformed to what was in Eberhart's report. He did, and when he gave it to Lt. Woods to read, Woods rejected it because it was false and Woods knew it to be false. Woods then told him to hold off on the supplement and about a week later, Whatley was told by Captain Cole to write another supplement which was accurate. Respondent, on the other hand, claims he had little contact with Whatley at the scene of the mishap and denies any direct conversation with him about the accident. All he said, he claims, was, "it doesn't look too bad." Respondent asserts that at no time did Whatley tell him how the accident occurred. Later that evening, when, at the station he saw Whatley writing his report, Whatley asked him for advice as to how to construct and what to put into his supplemental report. Respondent claims he told Whatley to go back and tell the story as it happened. He admits to telling Whatley how he felt the accident occurred but when Whatley said that was not how it was, Respondent again told him to write it as it happened. This whole conversation took no more than a minute or a minute and a half. The only direction he gave Whatley was as to the format of the supplement, not the substance, other than that it be the truth. When, a few minutes later, Respondent saw Woods and told him that Whatley was having trouble, Woods told Respondent how he felt the accident had occurred. At that time, Woods gave Respondent no directions, but Respondent went back into the station and again told Whatley to write up his supplement the way he, Whatley, recalled the accident happening. The following day, according to Respondent, Woods pulled him aside and told him he had just spoken to Major Lincoln who said the report was to be written as Respondent had originally said the accident had occurred, incorrectly. At no time did Respondent speak directly with Lincoln about the accident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case by the Commission dismissing the Administrative Complaint filed against the Respondent. RECOMMENDED in Tallahassee, Florida this 17th day of January, 1992. 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 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, regarding the Proposed Findings of Fact submitted by the Petitioner in this proceeding. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. - 14. Not phrased as Findings of Fact but more as restatements of testimony. However, the substance of the restatements is correctly stated and has been accepted and incorporated herein. Accepted and incorporated herein. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein as an accurate recitation of Whatley's story. 24. & 25. Again, not phrased as Findings of Fact. Here, however, the substance of Whatley's statement is rejected as not proven. 26. & 27. Rejected as not supported by evidence of record. - 30. Accepted and incorporated herein. Accepted. Rejected as not supported by the evidence. Whatley and Respondent did meet at the station that evening, but the allegation that Respondent told Whatley to falsify his report is not supported by credible evidence. & 34. These are restatements of testimony but are accepted. 35. - 37. An accurate restatement of the testimony, but the testimony is rejected as unsupported. Even Lincoln denied making the statement. 38. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. & 45. Accepted as accurate recitations of the testimony. COPIES FURNISHED: Rodney Gaddy, Esquire Michael R. Ramage, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Salerno, Esquire 242 Plaza Office P.O. Box 1349 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director CJSTC Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of falsifying the log book of a commercial motor vehicle.
Findings Of Fact On February 4, 1992, Jimmy R. Holton was driving on State Road (SR) 76 in a commercial vehicle bearing Vehicle Identification Number (VIN) 1F4Y05YB8LH385086. The vehicle was owned by Respondent, Herbert W. Allen d/b/a Allen Transit. At 10:42 a.m., on that date the vehicle was stopped for inspection by Michael Roberts, a Motor Carrier Compliance Officer employed by Petitioner. Roberts examined the driver's log book and discovered the driver had pre-logged a future activity. The log reflected that the entry was made at the not yet existing time of 11:30 a.m. The officer completed his inspection and issued a Safety Report and Field Receipt which reflected his action of assessing a civil penalty of $100 for the false entry in the log book and putting the driver out of service for eight hours. The penalty was paid at that time. The vehicle was transporting automobile parts, non- hazardous material, from Jacksonville, Florida. The vehicle had left Delray Beach, Florida headed for Stuart, Florida when stopped for inspection. The vehicle's travel had occurred inside the State of Florida. The driver was maintaining a log book in compliance with legal requirements of Section 316.302(2)(d), Florida Statutes (1991), because the intrastate distance for the contemplated trip exceeded a radius of 200 air miles from Jacksonville, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered rescinding the previous imposition of the $100 civil penalty administratively imposed by Petitioner. DONE AND ENTERED this 4th day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 4th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Respondent's Proposed Findings None submitted. Petitioner's Proposed Findings 1.-2. Accepted. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Herbert W. Allen P.O. Box 742 Hiawassee, GA 30546 Vernon L. Whittier, Jr., Esq. Assistant General Counsel 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Thorton Williams, Esq. General Counsel Department of Transportation Rm 562, Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The facts in this case are not in dispute, however, the Petitioner appealed the agency's act of suspending him for a period of eight hours without pay based on his contention that the suspension "is excessive". On March 2, 1978, while on duty assigned as a Highway Accident Investigator, the Petitioner investigated an accident which occurred at Kelly's Shell Station which is located on State Road 207 and Interstate 95 in St. Augustine, Florida. After completing his investigation, the Petitioner in an attempt to leave the scene of the accident, struck a sign post with the right front bumper of his car, causing damage to his vehicle in the amount of approximately $728.00. There is no dispute but that the accident was determined to be the fault of the Petitioner. Following the completion of an accident report and an investigation of the matter, Captain Hodges, who is assigned to the St. Augustine Office recommended the issuance of a letter of written reprimand to the Petitioner, however, upon review by the headquarters office, the Petitioner was suspended for a period of one day because in the opinion of the reviewing team, such a penalty was warranted in view of circumstances which prompted the accident and the severity of the damage. During the hearing it was further revealed that there were no view obstructions and the weather was clear and dry. As stated, there is little dispute factually in this case, however, the Petitioner contends that there were no acts of gross negligence on his part; this was his first accident wherein he was charged with fault, and that other troopers involved in similar accidents had only received letters of reprimand. Chapter 22A-10, Florida Administrative Code authorizes the Respondent, Department of Highway Safety and Motor Vehicles to discipline employees for violations of its rules and regulations. In view thereof, and inasmuch as the suspension herein was issued pursuant to the guides of Chapter 22A-10 and the admissions of Petitioner that he was at fault in causing the accident to which he was suspended, there is competent and substantial evidence to sustain the action of the Respondent in suspending the Petitioner for a period of eight hours without pay. This appears to be an area of discretion which does not lie within the authority of the Hearing Officer to second guess the wisdom of the Respondent, or to attempt to determine whether or not the suspension was "excessive". I shall therefore recommend that the agency action be sustained.
Recommendation Based on the foregoing Findings of Fact and Conclusions I hereby recommend that the action of the agency suspending the Petitioner for a period of eight hours without pay be SUSTSAINED. ENTERED this 27th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1978. COPIES FURNISHED: Ronald Cantrell Rt. 4, Box 241EZ-1 St. Augustine, Florida 32084 Major John Hicks, Deputy Director Dept. of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue The issues in this case are whether Respondent, Michael R. Harrison, committed the violations alleged in an administrative complaint dated June 28, 1996, and if so, what discipline or penalty is appropriate.
Findings Of Fact Michael R. Harrison is certified by the Criminal Justice Standards and Training Commission as a law enforcement and correctional officer, having been issued corrections certificate number 26101 on December 18, 1985, and law enforcement certificate number 26100 on July 2, 1987. At the time of the incident at issue, Officer Harrison was employed as a deputy with the Orange County Sheriff’s Office. On February 14, 1995, around 4:25 p.m., Harrison was parked in the woods on Willow Street in Zellwood, Florida, doing some paperwork. He observed two young black males engaged in what he thought was drug dealing. A yellow car pulled up to them, with a white male driving. The tag on the yellow vehicle was in Harrison’s plain view. Familiar with the area, and knowing that the white male did not live there, Harrison decided to run a check on the tag. The tag itself was slightly lopsided and not well-attached, and Harrison’s instincts made him suspicious of the situation. As soon as Harrison gave the tag number to the teletype operator, the yellow car began to pull away from the scene. It was apparent that the driver had noticed Harrison’s vehicle. Harrison began pursuit of the yellow car as he waited for the teletype response on the tag. By the time the tag response came over the radio, Harrison was totally absorbed with his pursuit. There was rush- hour traffic and the yellow car was on U.S. Highway 441, a busy thoroughfare. When Harrison made the stop and the driver produced his license, the computer check revealed that the license was restricted “for business purposes only.” After a brief inquiry that satisfied him that the suspect was not on his way home from work, Harrison arrested the driver on what he considered was a driver’s license violation. As he waited for a back-up deputy and a tow truck for the yellow car, Harrison searched the car and found a small quantity of marijuana. Harrison then charged the driver with the drug offense. In the meantime, and while Harrison was still pursuing the yellow car, the report on the suspected tag came back “negative” (a valid tag). The dispatcher reported that the tag “...should appear on a ’70 Ford, two-door, yellow in color.” This was the vehicle Harrison was pursuing. Moreover, the person to whom the vehicle was registered was the driver arrested by Harrison. Later, the same day as the arrest, Harrison filled out the arrest report, a form titled “Charging Affidavit.” Under the narrative statement of facts to establish probable cause, Harrison included this statement: “I ran the tag and it came back no record found.” (Petitioner’s Exhibit 1) Corporal McCarthy McCullough was reviewing reports at the end of her shift at Orange County Sheriff’s Office around 1 a.m., February 15, 1995. She read Deputy Harrison’s charging affidavit and questioned the sufficiency of his probable cause for the stop. She called him in to discuss the report. He tried to explain to her what “no record found” meant. Harrison admits that when Corporal McCullough talked to him, he was aware he had made an error on the form. He wanted to talk to his supervisor because Corporal McCullough was new on the job, but the sergeant was at school. Harrison felt he needed to amend the charging affidavit, but never did as “things just started happening too fast, and I didn’t have the opportunity.” (transcript, p.31, ll. 5-7) After Harrison left the shift, Corporal McCullough, still suspicious about the probable cause, ran the tag through the teletype herself and got the response described in paragraph 7, above. The next day she talked to her sergeant, and they got a tape of the message to Harrison from the communications center. The tape reflects the exchange between Harrison and the dispatcher when he gave the tag number to the dispatcher and asked for a “28-29,” which is code for a vehicle registration and check to see if the car was stolen or wanted for any reason. The answer, as acknowledged by Harrison at hearing, was the “negative” with information describing the car and driver stopped by Harrison. The statement by Harrison on his charging affidavit is patently false. Although no one formally administered an oath to him before he signed the form, his signature appears under this printed statement: “I swear and affirm the above statements are correct and true.” His signature is next to that of another law enforcement officer or correctional officer with this statement: “Sworn to and subscribed before me, the undersigned authority”. (Petitioner’s Exhibit 1) These statements and the title of the form itself were ample notice to Harrison that he was swearing to the truth of his handwritten report of the arrest and its probable cause.i Aside from his specious argument that he was not really “swearing” to the document, Harrison’s defense is that he never intended to make a false statement. Instead, he never listened to the dispatcher’s response, as he was intent on pursuing his suspect and was concerned for his safety in the pursuit. His instincts were that the driver had intended to deal drugs back on Willow Street, an area where he did not belong, and that because the tag was awry, there was some problem with the vehicle. When he was questioned by Corporal McCullough a simple admission that he had not listened properly to the dispatcher would have credited his excuse of a “mistake.” Instead, he stuck to his story and tried to explain what “no report” meant. His account of the incident is disingenuous and supports a finding that the report was intentionally false, perhaps from an overabundance of zeal to justify a stop that yielded two offenses. After the incident was referred to Internal Affairs, Harrison was dismissed from his position. He had been a deputy for six years without any suspensions or discipline for duty work. He and his partner once shared a commendation of “deputy of the month.”
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order finding that Michael R. Harrison knowingly made a false report, imposing one year’s suspension of his certificate and two years’ probation, with the further requirement that he complete appropriate retraining specified by the Commission. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. _ Hearings Hearings MARY CLARK Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 27th day of June, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 H.R. Bishop, Jr., Esquire Post Office Box 11239 Tallahassee, Florida 32302-1239 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact The Parties H. B. Walker, Inc. is in the business of demolition, excavation and land clearing. The company transports heavy equipment to and from job sites and transports debris from job sites and is a commercial motor carrier. The company maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando, Florida. All commercial motor carriers operating over the public highways in Florida are subject to certain federal regulations governing driver and vehicle safety and record-keeping. Those federal regulations are adopted by reference in the Florida Statutes, which statutes are amended from time to time to address a later version of the federal regulations. The DOT has the authority and responsibility to enforce those safety and record-keeping requirements, which it does, in part, through terminal audits, sometimes called "compliance reviews". The Process On April 18, 1995, after conferring with his supervisor, Officer Terron Lindsey, a seasoned agency motor carrier compliance officer, visited H. B. Walker's terminal and conducted a review of Walker's records. As a result of the review, Officer Lindsey found multiple violations of the record-keeping requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that he would return in 60 - 90 days and no penalty would be imposed if the violations were corrected. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found that some, but not all corrections were made. On August 1, 1995, the agency issued to H. B. Walker a Safety Report and Field Receipt stating the violations and citations to the federal rules and assessing penalties in the total amount of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to Walker's terminal and was told that the penalty would not be paid. Walker did not pay the $4,000, but protested the agency's findings to the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief experience with conducting terminal audits and assessing penalties for record- keeping violations, but this was the first time that a motor carrier had refused to pay the penalty prior to presenting its protest to the Board. Captain E. A. Brown, Officer Lindsey's supervisor, called the Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's legal office to find out how to proceed. As motor carriers are aware, DOT exercises authority in road-side safety inspections to require immediate payment of any penalty or to impound the vehicle when a compliance officer issues a citation. Based on DOT's existing rules, Chapter 18 of the Motor Carrier Compliance Manual and experience with road-side safety enforcement, Colonel McPherson advised Captain Brown that the agency had authority to impound an H. B. Walker vehicle. After receiving directions from his headquarters, Captain Brown wrote letters to H. B. Walker and orally informed Walker's employee, John Valois, that if the penalty were not paid, a vehicle would be held, consistent with past enforcement actions on non-payment of penalties. On August 28, 1995, at the direction of Captain Brown, Officer Rick Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance yard. In the meantime, after the Board received H. B. Walker's request for a hearing on the violations, the Board's Executive Secretary, Elyse Kennedy, telephoned Walker's counsel and told him that the Board could not hear his case until the penalties were paid, or a bond was posted. Later, after confirming with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that the Board could schedule and hear the case, as the impoundment of a vehicle was equivalent to payment of the penalties or the bond. H. B. Walker's case was scheduled with consultation with Walker's attorney. On the appointed date, when no representative from H. B. Walker appeared, the Board considered written material submitted by Walker's attorney and testimony from Officer Lindsey. The Board notified H. B. Walker of its denial of relief in a letter dated September 15, 199[5]. The letter states in pertinent part: Dear Sir: Pursuant to Section 316.545, Florida Statutes, the Commercial Motor Vehicle Review Board at its meeting of July 13, 199[5], carefully reviewed all of the information placed before it and determined that a refund was not appropriate in this case for the following reason. After hearing testimony of Officer Lindsey and Captain E. A. Brown, the Board felt that H. B. Walker, Inc. was not in compliance with CFR 391.51; CFR 391.43; CFR 391.103 and CFR 396.3. Pursuant to Rule 14A-1.012, Florida Administrative Code, you are entitled to request a rehearing in this matter by filing such a request with the Executive Secretary within ten (10) days of the receipt of this letter. Pursuant to Chapter 120, Florida Statutes, you have the right to either a formal or an informal hearing. A formal hearing will be granted where disputed issues of material fact exist; in other words, where you disagree with the specific facts contained in this letter upon which the Commercial Motor Vehicle Review Board bases its intent to deny your request for refund. All requests for either type of hearing must be in writing. * * * You are hereby notified that the conclusion contained in this letter shall become final with 21 days of receipt of this letter, unless, you file a written request for an informal or formal Administrative hearing pursuant to Section 120.57, Florida Statutes, with the Clerk of Agency Proceedings within 21 days. * * * Walker's timely request for a formal hearing tolled the Board's conclusion. The 1995 Rules In 1995, at the time of the H. B. Walker terminal audit and ensuing Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code, provided, in pertinent part: 14A-1.004 Meetings . . . Only penalties which have been paid or for which a Section 316.545 bond has been posted, will be considered by the Review Board. 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the provisions of section 316.545 or 316.3025, Florida Statutes, after payment of the penalty, or posting a section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the penalty notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested . . . . At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in pertinent part: 14-87.011 Definitions * * * "Citation" means: A Load Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of weight and vehicle registration laws: or A Safety Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of safety laws and regulations and permit violations; or The penalty portion of an I. R. P. Trip Permit & Temporary Fuel Use Permit issued to the owner or driver of a commercial motor vehicle in violation of the fuel use tax requirements contained in Chapter 207, Florida Statutes. 14-87.002 Penalties and Fees Due Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. . . The 1996 Amendments On June 7, 1996, DOT published notices of rule-making, proposing to amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16, 1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those amendments became effective August 5, 1996. The amendments to Chapters 14-87 and 14-108, Florida Administrative Code, became effective in September 1996. The cumulative effect of these amendments is to distinguish between the penalty process for road violations and the process for violations found during a terminal audit/compliance review. The amendments provide that a commercial motor carrier who has been assessed penalties for violations found during a terminal audit may obtain a Review Board hearing prior to payment or posting a bond. The amendments also distinguish between a "notice of non- compliance" issued after a terminal audit to advise the carrier of violations and the penalties that will be assessed if the violations are not corrected, and a "notice of violation" which identifies the violations and assesses penalties. DOT's amendments to chapter 14-87, Florida Administrative Code, are, in relevant part, as follows: (Underlined material has been added, material struck through has been deleted.) 14-87.0011 Definitions * * * "Penalty" means a monetary amount prescribed by statute or Department rule as a civil penalty to be assessed administratively for a violation of a commercial motor vehicle law pursuant to the issuance of a citation or a notice of violation. * * * "Notice of Violation" means a notice of violation as defined by Rule 14-108.002(5). * * * 14-87.002 Penalties and Fees Due; Detaining and Impounding Motor Vehicles When Citation or Permit Issued Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. Penalties due under chapter 14-108 are due in accordance rule 14-108.004. All penalties and fees not guaranteed by a Surety Bond must be paid to the officer or inspector issuing the citation or permit or detaining the vehicle for nonpayment of penalties prescribed under rule 14-108.005 prior to further operation of the affected commercial motor vehicle on the roads of this State. Payment may be in cash, by cashier's check or by money order. In the event that payment is not made when payment is due, the motor vehicle will be impounded in accordance with sections 316.3025 or 316.545, Florida Statutes. When a Surety Bond has been properly filed and accepted by the Department, the vehicle will be released upon presenting written evidence of the surety bond to the officer or inspector detaining the vehicle the citation or permit will be issued to the owner or driver of the vehicle, and payment must be remitted to the officer or inspector who issued the citation or permit within ten working days of the release of the vehicle date of issuance. Company checks may be accepted when a proper Surety Bond is on file. In the event that payment is not made within ten working days of release of the vehicle, the Department will take action to recover the penalty amount from the surety bond. Motor vehicles impounded in accordance with this rule will be released upon payment of the penalty or the posting of a bond pursuant to Section 316.545, Florida Statutes, or upon a determination by the Commercial Motor Carrier Review Board to cancel or revoke the penalty or upon the issuance of a Department order setting aside the penalty as the result of a proceeding held pursuant to section 120.57, Florida Statutes. Motor vehicles released as a result of the posting of a bond under section 316.545, Florida Statutes, remain subject to the lien imposed by that statute. The Department's amendments to chapter 14-108, Florida Administrative Code, are, in relevant part, as follows: 14-108.002 Definitions * * * "Notice of Noncompliance" means a notice issued to a motor carrier that advises the motor carrier of violations found during a terminal audit/compliance review and identifies the penalties that will be assessed if the violations are not corrected within 60 days of receipt of the notice. "Notice of Violation" means a written notice which identifies violations of safety laws and regulations found during the conduct of a terminal audit/compliance review and assesses penalties pursuant to these rules. Such a notice will be issued after violations are found and penalties are to be assessed under this Chapter. (5) "Penalty" means a monetary amount prescribed by statute as a civil penalty to be assessed administratively for violation(s) of safety laws and regulations found during the conduct of a terminal audit/compliance review. (6) "Terminal Audit" or "Compliance Review" means an onsite investigation at a motor carrier's terminal or office of property carrier or passenger carrier records such a driver's hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents and other safety and business records to determine compliance with the safety laws and regulation. The investiga- tion will compliance review may result in the initiation of an enforcement action to include the assessment of the applicable penalty(ies) prescribed by statute and this rule chapter. 14-108.003 Applicability; Compliance Required * * * Any person or motor carrier who operates or causes or permits nonpublic- sector buses to be operated on any road, street, or highway open to travel by the public in the transportation of passengers shall be in compliance with the applicable safety laws and regulations contained in section 316.70, Florida Statutes, and Title 49 C.F.R. Parts 382, 385 and 390 through 397 301, 393, 394 and 396. Any person or motor carrier found to be in violation of these rules during the conduct of a terminal audit or compliance review shall be subject to the penalties herein described. The penalties prescribed by rule 14-108.105 will be waived and a notice of violation will not be issued if, as a result of the first terminal audit or compliance review conducted of a Motor Carrier, the Motor Carrier corrects the described violations within 60 days after receipt of a written notice of noncompliance. Penalties for the following violations will not be waived under the above provision, even if they are found during the first terminal audit or compliance review and are corrected immediately. Failure to comply with controlled substance testing requirements Exceeding driver hours of service. Violations involving hazardous materials. Lack of valid commercial driver's licenses, including revoked, suspended or cancelled licenses. 14-108.004 Administration: Enforcement. All penalties imposed and collected in accordance with these rules shall be paid to the treasurer, who shall credit the total amount collected to the State Trans- portation Trust Fund in accordance with section 316.3025(5)(b), Florida Statutes. Penalties assessed as a result of a terminal audit are due and shall be paid no later than ten working days after receipt of the notice of violation, unless a timely appli- cation is made to the Commercial Motor Vehicle Review Board under rule 14A-1.007, in which case the penalty (or the remaining part thereof) is due and shall be paid no later than ten working days after receipt of a written decision by the Review Board sustaining the penalty in whole or in part. Whenever any person or motor carrier violates the provisions of these rules and becomes indebted to the State because of such violation(s) and refuses to pay the appropriate penalty, the penalty becomes a lien upon the property including the motor vehicles of such person or motor carrier and may be foreclosed by the State in a civil action in any court of this state as prescribed by section 316.3025(4), Florida Statutes. Motor vehicles of the person or motor carrier will be detained and impounded for nonpayment in accordance with Rule 14-87.002. The adopted amendments to Chapter 14A-1, Florida Administrative Code, are, in relevant part, as follows: 14A-1.004 Meetings The Review Board shall sit as an admin- istrative body in equity to consider testimony or written documents in mitigation, extenuation, modification, cancellation, revocation, or maintenance of any penalty or penalties imposed pursuant to 316.540, 316.545, or 316.3025, Florida Statutes. Only penalties which have been paid or for which a section 316.545 bond has been posted, will be considered by the Review Board. However, this provision shall not prevent the owner of a motor vehicle that has been impounded for nonpayment from receiving a Review Board hearing. Further, as provided in Rule 14-108.004, a motor carrier may obtain a Review Board hearing on penalties assessed as a result of a terminal audit prior to payment or posting of a bond. Review Board meetings may be scheduled as often as determined necessary, based on a sufficient number of penalties being avail- able for review to justify the expense of hold a meeting. The Review Board shall meet not less than six times per year. Location of meetings shall be determined by the Review Board. Upon timely written request, cases involving Florida based persons will be scheduled at the next meeting held in their geographic area. However, cases involving requests for Review Board conside- ration of unpaid penalties imposed for violations found during a terminal audit will be scheduled for the next meeting regardless of location. Upon timely written request, cases involving non-Florida based persons will be scheduled at the next meeting of the Review Board. Persons may request the scheduling of their case at a specific city at which the Review Board meets. Such requests must be in writing to the Commercial Motor Vehicle Review Board, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. * * * 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the pro- visions of Section 316.545 or 316.3025, Florida Statutes upon compliance with Rule 14A-1.004, after payment of the penalty, or posting a Section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the Penalty Notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested. The request shall set forth in detail the basis of the protest and all matters to be considered so that the Review Board can be prepared to discuss the issue at the meeting if the protestor does not appear. The request must be received within 60 days. A written request for Review Board consideration of a penalty imposed for violations found during a terminal audit must be submitted and received within ten working days after receipt of the notice of violation in order to be considered timely and such written request must be submitted via hand-delivery or certified mail. 14A-1.008 Appearances Those persons, firms or corporations who have been assessed a penalty for violations of Section 316.540, 316.545, or 316.3025, Florida Statutes, and have complied with the requirements of Rules 14A-1.004 and 14A-1.007 either have paid the penalty or posted a Section 316.545, Florida Statutes, bond shall appear in person, through an authorized representative or by legal counsel. Each person shall be given ample time to explain the reasons for seeking relief. The Review Board, at its discretion, may inquire into any testimony presented at the meeting or written statements presented. Testimony also may be received from the agency that imposed the penalty. Although Mr. Walker testified that he never received notice of rule- making to amend Chapter 14A-1, Florida Administrative Code, he did not present evidence that he requested notice. Nor did he argue that the amendments were otherwise invalid. Chapter 18, Motor Carrier Compliance Operations Manual As stated in its first paragraph, Chapter 18, "Collection of Civil Penalties", within the Motor Carrier Compliance Operations Manual, the purpose of Chapter 18 is, to establish a uniform procedure for the collection of overweight penalties and other commercial vehicle penalties assessed pursuant to Florida Statutes and, Department Rules. (DOT Exhibit Number13) Like the rules of DOT in 1995, the Chapter 18 procedures provided for immediate collection of a penalty, or posting a bond or impoundment of a vehicle at the time enforcement action is taken. Although agency personnel invoked Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker, the provisions of the Chapter nowhere specifically mention penalties assessed as the result of terminal audits. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to be inserted in Chapter 18 describing procedures for imposition and collection of civil penalties associated with terminal audits. Those procedures are the same as the procedures described in the rule amendments addressed in paragraphs 18 through 20, above.
Findings Of Fact At all times relevant hereto, respondent, William Thomas Brady, held various insurance licenses issued by petitioner, Department of Insurance. Under these licenses, Brady was qualified as an independent adjuster - fire and allied lines including marine, casualty and motor vehicle physical damage. Brady presently resides at 17105 Southwest 87th Court, Miami, Florida. The parties have agreed that on or about June 3, 1985 the following relevant events occurred: On Monday afternoon, June 3, 1985, the defendant arrived at the scene of an auto- mobile accident that had occurred at Sunset Drive and 61st Avenue in South Miami. The defendant walked up to Susan Alters, the driver of one of the cars involved in the accident, and said "Oh, it looks like you're in trouble." She said no, that everything was under control. The defendant handed her a business card containing an address and telephone number. He said "I'm associated with a law firm which specializes in accident cases that can be of help to you. Call me as soon as you can if you feel you need my services." The defendant then took some photographs of the scene and left. As a result of the above events, an information was filed on October 24, 1985 by the state attorney for Dade County charging Brady with "knowingly solicit(ing) business upon a public street or highway for the purpose of making a motor vehicle tort claims (sic) or claims for personal injury protec- tion benefits required by Section 627.736, Florida Statutes, in violation of 817.234(8), Florida Statutes." The offense is a third degree felony. After respondent's motion to dismiss the charge was denied by the trial court, on April 8, 1986 respondent entered a plea of nolo contendere and concurrently reserved the right to appeal the court's denial of his motion to dismiss. The court withheld adjudication of guilt and placed respondent on eighteen months of supervised probation, or until October, 1987. Respondent thereafter appealed the denial of his motion to dismiss to the Third District Court of Appeal. In a decision rendered on June 9, 1987, the court affirmed the lower court ruling. Brady v. State of Florida, 12 FLW 1420 (Fla. 3rd DCA June 9, 1987). Respondent then filed a motion for rehearing which is still pending before the court.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violation of Subsection 626.621(8), Florida Statutes (1985), and that his license and qualifications be placed on probation for two years. All other charges should be dismissed. DONE AND ORDERED this 27th day of August, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 8th day of December, 1988.
Findings Of Fact Respondent has been employed since October, 1972, by Petitioners and at all times material hereto he has been a heavy equipment operator with permanent status in the civil service system. There is no factual dispute that on January 2, 1986, Respondent was involved in an accident causing damage to the right rear fender of a city vehicle in the approximate amount of $100. Respondent admits he was at fault in this accident. The accident review board determined this was a `"chargeable" accident and Respondent was suspended for one day, without pay, on January 31, 1966, upon the recommendation of R. Gardner Smith. In recommending a one day suspension, without pay, Mr. Smith considered other chargeable accidents occurring within a two year period prior to January 2, 1966, in which Respondent was involved. There were two such chargeable accidents within this period: 2/1/64 Respondent was charged with striking a tree and breaking a mirror on the city vehicle for which he received verbal counseling, 11/6/65 Respondent was charged with breaking a turn signal and headlight on a city vehicle for which he received a written warning. Three other non-chargeable accidents also occurred during this periods but were not considered in recommending the one day suspension imposed in January, 1966. During the hearing, Respondent disputed whether he was at fault for the two previous chargeable accidents. He explained that the February, 1964 accident occurred in a sandy area which was very wet due to heavy rains. As he was driving his vehicle into the sandy area, one wheel sunk into the sand causing the vehicle to come in contact with a tree limb which broke a mirror on the vehicle. This is confirmed by Jesse Myrick a co-worker. Regarding the November, 1965 accident, Respondent contends that the headlight was already broken on the vehicle and he only damaged the turn signal. By letter dated April 4, 1966 his supervisor, John Stout, expressed his opinion that Respondent was not at fault in the November, 1965 incident. Nevertheless, the accident review board did determine that these were both chargeable accidents, and Respondent took no formal action to appeal prior disciplinary action based on these two accidents. Respondent's accident record prior to February 1, 1964 was not considered by Smith when he recommended the one day suspension, without pay, and is therefore irrelevant in this case.
Recommendation Based upon the foregoing, it is recommended that Respondent's appeal be DISMISSED, and a Final Order be issued confirming the disciplinary action of a one day suspension, without pay, which has been taken against Respondent. DONE and ENTERED this 7th day of May, 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0887 Rulings on Petitioner's proposed findings of fact: Adopted in Finding of Fact number 2. Adopted in Finding of Fact number 3. Rulings on Respondent's proposed findings of fact: 1-2. Adopted in Finding of Fact number 4. Adopted in Finding of Fact number 2. COPIES FURNISHED: Miles A. Lancer, Esquire Assistant City Attorney Post Office Box 4746 Clearwater, Florida 33516 William Trullard 1620 Rainbow Drive Clearwater, Florida 33515
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
