The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 11th day of May, 2011.
Findings Of Fact J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977. COPIES FURNISHED: Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 J. W. Joines 690 Nelson Drive Orange Park, Florida 32073 Ms. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact On November 15, 1984, Trooper Kevin Dennis Roy of the Florida Highway Patrol stopped an automobile occupied by Petitioner on the Florida Turnpike in Palm Beach County. After obtaining consent to search the vehicle, Trooper Roy discovered in the trunk approximately 100 pounds of marijuana and a white plastic bag containing $8644 in small bills wrapped in rubberbands. Petitioner made no claim to the cash found in the trunk. He was arrested. A search revealed no significant sum of money on Petitioner's person. The State Attorney's office dropped a subsequent criminal proceeding for possession of marijuana because Respondent denied knowledge of the drugs and money in the trunk.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's claim of ownership of the monies in question. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0103 Treatment Accorded Petitioner's Proposed Findings Rejected as irrelevant. Adopted in substance. 3-10. Rejected as recitation of testimony. 11&13. Adopted in substance. 12. Rejected as irrelevant. Adopted except as to the amount of money in the bag. Rejected as irrelevant. 16-17. Rejected as recitation of testimony, irrelevant, and subordinate. 18. Rejected as not finding of fact. Treatment Accorded Respondent's Proposed Findings 2, 13, 27, 28. Adopted in substance. 16. Adopted. Remainder rejected as recitation of testimony, subordinate, and irrelevant. COPIES FURNISHED: Matthew M. Johnson, Esquire 524 East Livingston Street Orlando, Florida 32803 Elise M. Greenbaum, Esquire Assistant General Counsel Office of Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801-1799 Honorable Gerald Lewis Comptroler State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts General Counsel Department of Banking and Finance Plaza Level, The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact In November of 1960 the Petitioner, Frankie L. Mills, became employed by the Florida Highway Patrol, and he was a member of the Florida Highway Patrol Pension System (Chapter 321, Florida Statutes). On approximately December 1, 1970, the Petitioner transferred from the Florida Highway Patrol Pension System, and he became a member of the Florida Retirement System (Chapter 121, Florida Statutes). In June of 1976, the Petitioner resigned from the Florida Highway Patrol to run for Sheriff of Okaloosa County. He was elected, and began his position as Sheriff in January of 1977. In the election of 1980 the Petitioner was not re- elected as Sheriff of Okaloosa County. As a result, his term of office as Sheriff ended on January 6, 1981, and the Petitioner vacated the office of Sheriff of Okaloosa County. The Petitioner did not resign from his position as Sheriff of Okaloosa County. His termination from the office of Sheriff was occasioned by the expiration of his elected term of office as of January 6, 1981.. During the time the Petitioner served as Sheriff of Okaloosa County, until January 6, 1981, he was a special risk member of the Florida Retirement System (Chapter 121, Florida Statutes). In August of 1981, the Petitioner became employed as a deputy sheriff of Gulf County. This employment qualified him as a special risk member of the Florida Retirement System (Chapter 121, Florida Statutes). The Petitioner has been employed as a deputy sheriff in Gulf County since August, 1981, and he is so employed at present. Between January 6, 1981, and at least August 11 981, the Petitioner was not employed by an "employer" as this term is defined in Section 121.021(10), Florida Statutes, and during this time he was absent from the payroll of any such "employer." Between January 6, 1981, and August of 1981, the Petitioner was not a "state law enforcement officer" as this term is used in Section 121.021(38), Florida Statutes, and Rules 22B- 2.002(5)(e) and (g), Florida Administrative Code. Between January 6, 1981, and August of 1981, the Petitioner had a break in his continuous service under the provisions of Chapter 121, Florida Statutes, including Section 121.021.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter its Final Order finding that the Petitioner, Frankie L. Mills, had a break in his continuous service in the special risk category of the Florida Retirement System during the period of time he was not employed as a law enforcement officer between January and August, 1981. THIS Recommended Order entered on this 26th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of November, 1986. COPIES FURNISHED: Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32301 Robert Scott Cox, Eq. P. O. Box 1876 Tallahassee, FL 32302-1876 Burton M. Michaels, Esq. 2639 North Monroe street Suite 207, Building C Tallahassee, FL 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner's proposed findings are not in consecutively numbered paragraphs, but the unnumbered paragraphs will be considered to be consecutively numbered. 1.-3. Accepted. 4. Rejected, as not a proposed factual finding, but an argument of law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted.
