The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent, R.H. Motors, d/b/a Kia of Orange Park ("Kia"), discriminated against Petitioner, Lamar B. Waters ("Waters"), on the basis of age in derogation of the Florida Civil Rights Act of 1992.
Findings Of Fact Waters is a 71-year-old Caucasian male who resides in Green Cove Springs, Florida. At all times pertinent hereto, Waters was employed by Kia at its automobile dealership in Orange Park, Florida. By all accounts, Waters was extremely well liked at the dealership. He had a jovial personality and got along well with his co-workers. He was generally seen as a nice, retired man with ample financial wherewithal to enjoy life. Waters himself says that he is financially comfortable, but does not consider himself rich. He lives in a nice house that is valued at around $900,000 (or was at the time he purchased it). He owns a nice boat that some fellow employees have used for parties and gatherings. Waters is a college football fan and enjoys spending time watching and attending games, especially for his favorite team, the Georgia Bulldogs. In 2013, Waters filed for bankruptcy, but for the purpose of working out a deal on his home mortgage, not--apparently--due to significant financial problems. Waters often said that he was financially sound and was working “only to get away from his wife,” but that may have been in jest rather than serious. Kia is a dealership which sells both new and used automobiles. It has been in existence since August 2008. It is owned by R.H. Motors, a Florida corporation. The vice president of operations for R.H. Motors is Robert Hogan. The dealership, including the car lot, offices, and service department, is located on a large tract of land in Orange Park. The new car section of the dealership is located on a large lot which includes the office building and service area. Across from the new car section there is a smaller lot which was initially used for selling used cars. There is a mobile home or modular building on the used car lot which is used as an office. Waters joined the U.S. Navy at age 17; he later entered flight school with the U.S. Army. He served time in Vietnam during the conflict with that country. Waters was honorably discharged from the service in 1975. He took a job flying airplanes for AFLAC (or its predecessor company) and later became a general manager for the company. Waters retired from AFLAC in 2004 and then went to work for a Volkswagen dealership in Orange Park, Florida. He worked as a floor salesman for the Volkswagen dealership. In November 2009, when Waters was 66 years old, he was offered a job at Kia. He accepted and started work on December 1, 2009, as a floor salesman, selling new and used cars. Waters had been hired by Joe Esposito, the general manager for Kia at that time. Waters was compensated at minimum wage plus commission on cars he sold. While he was a salesman, Waters would take off from work either Tuesday or Thursday of each week and every Sunday. In June 2010--or thereabouts--Waters was offered a different position at Kia. Waters described the position as the “wholesale manager” for the dealership. He said his duties included buying and selling cars at auctions. He also managed the used car lot, did appraisals for cars being traded in, and continued to sell cars. In April 2013, general manager Esposito placed Waters on indefinite leave due to “internal issues” at the dealership. In May 2013, Esposito asked Waters to attend a class on managing customers. The class was to be held at Kia’s primary headquarters in South Carolina. Waters and another employee traveled to South Carolina, but there was no training provided. An employee at headquarters talked with the two men briefly, but there were no classes or training. Waters had understood the reason he was sent to South Carolina was so that he could be assigned a new job as some kind of customer manager. There was obviously some disconnect between what Waters was told and what he understood to have been said. When Waters returned from South Carolina, he found that Esposito had been fired as the general manager at Kia. Waters somehow met with Robert Hogan (described by Waters as "the owner") when Hogan came to visit the dealership even though Waters was supposedly on indefinite leave at that time. When Hogan found out Waters had been placed on leave by Esposito, he immediately reinstated Waters and made sure he was paid back-pay for the time he was out of work. At that time, Hogan also asked Waters to manage the used car side of the dealership. Waters remembers that he was hired as the Used Car Manager. Hogan says he was hired as the Budget Car Manager, i.e., that Waters was only to be responsible for selling the least attractive used cars. Those cars generally came onto the lot as trade-ins by persons purchasing new vehicles. Waters said that as part of this new job, he was tasked with going to auctions for the purpose of obtaining additional used cars for the Kia dealership. Hogan said Waters was never authorized to purchase cars for the dealership, and that the dealership already had too many used cars. No additional testimony was provided to rectify this disparity. Either one of the witnesses was not telling the truth or Waters was mistaken about his duties. A brief explanation of the dealership is warranted: Kia sells both new and used cars. Used cars come from various sources, including trade-ins by customers buying new cars, purchases from rental car fleets, and purchases from auctions. The used cars were for a time sold from a lot adjacent to the main Kia lot. Later, Kia moved all used cars over to the same lot with the new cars. The used car lot was then used as a place to store new car inventory. When Waters was reinstated to his job and began working with used cars, a new general manager--Mr. Record--had been hired. Record was instrumental in the change that moved all used cars over to the new car lot. He was also very harsh and unfriendly with employees at the dealership, so Hogan eventually fired him as general manager as well. He was replaced by Jeff Norman. Norman continued the practice of keeping all the cars, new and used, on one lot--except, it appears, for the cars deemed "budget" cars. Norman also took over some of Waters’ tasks and responsibilities, e.g., Norman began doing the appraisals of used automobiles. Norman also took over the acquisition of used cars, although Waters would sometimes disagree with the choices Norman made. Norman told Waters a new policy of Kia was to get rid of the budget cars as quickly as possible rather than trying to repair them for higher re-sale. At some point in time after Waters had been reinstated to his job, Hogan began to have concerns about the number of hours the used car lot office was being manned. He expected that office to be open whenever the main lot office was open, i.e., from 9:00 a.m. until 10:00 p.m. Hogan had called and/or gone by the used car lot on numerous occasions around 5:30 p.m. or 6:00 p.m. in the evening and found it closed. Hogan raised his concerns about Waters’ work schedule with the new GM, Norman, and asked him to talk to Waters, get him back on track, and tell him what was expected of him as an employee of Kia. Norman called Waters into his office on October 16 or October 17 (the date is in dispute) to discuss the matter. Norman told Waters that things were changing at Kia. He said the dealership would be trying to sell 250 cars a month. To do that, employees were going to be expected to work long, 12-hour days, six or even seven days a week. Norman allegedly asked Waters how old he was, and then said Waters was about the same age as Norman’s father. Norman allegedly told Waters that the dealership did not want to put him under that kind of stress. Waters told Norman he would not like the proposed new work schedule and hours. Norman allegedly told Waters that he (Norman) was worried that a man Waters’ age could not stand the stress of working those hours.1/ Waters took Norman’s words to mean, in essence, that Waters was being terminated from employment. He replied to Norman only, "I appreciate it," and walked toward the door. As he was exiting, Norman said that he would check with the sister Kia dealership in the Southside area of Jacksonville to see if they had any sales positions open. Waters apparently did not accept that offer. After the meeting with Norman, Waters went to his desk and gathered his personal belongings. He went back into the dealership and said goodbye to Hutchinson, the young office manager who had been friendly to Waters during his tenure at Kia. Waters hugged Hutchinson, said "I’m out of here," and indicated that he did not want to work on weekends. He then left the premises.2/ On the 17th day of October, Hutchinson was instructed to fill out a Separation Notice to reflect Waters’ cessation of employment at Kia. The reason given on the form for Waters’ leaving was "Voluntary [sic] Quit." Waters’ term of employment was listed as December 1, 2009 through October 17, 2013. Waters’ work schedule was listed as 9:00 a.m. until 10:00 p.m., seven days a week. Hutchinson said that is simply a statement of when the store is open; each person works the hours necessary to get their job done. In the description of Waters in the Separation Notice, Hutchinson wrote, "Great company guy. None better." There is not dispute that Waters was a well-liked person at the dealership. Waters did not see the Separation Notice until it was sent to his attorney in preparation for final hearing. Waters disagrees with the date of the notice, the work hours listed, and that he voluntarily quit his job. On October 1, 2013, just two weeks before leaving Kia, Waters had been given a raise from $1,500.00 per month, plus 5% of profits generated by the used car department, to $4,000.00 per month plus 5% of the profits. Waters did not contact Hogan to inquire as to whether something could be worked out concerning his continued employment. Hogan had been exceptionally nice to Waters in the past, but Waters did not pursue relief with him. Hogan remembers trying to contact Waters once via telephone but never talked to him about the matter. As far as Hogan is concerned, Waters voluntarily terminated his employment with Kia because he did not want to work the hours needed. Hogan had hired Waters at age 66 and did not have any objection to Waters working for as long as he felt healthy enough to do so. After he left his employment with Kia, Waters has sought but been unable to locate another management job. He has no interest in going back into a sales position. No testimony or evidence was presented at final hearing as to whether Waters’ position with Kia was filled or, if so, whether a younger person was hired to replace him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Lamar B. Waters, by Respondent, R.H. Motors, d/b/a Kia of Orange Park. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2014.
The Issue Whether Petitioner's application for licensure as a Community Association Manager by Examination should be granted.
Findings Of Fact When Petitioner was 20 years old, he and a group of other young adults stole approximately $15 worth of chrome off of a car in a used car lot. Petitioner was arrested on November 11, 1983, by the Deland, Florida, Police Department. On February 1, 1984, Petitioner appeared in Volusia County Court and pled guilty to "Petit Theft" under Section 812.014(3)(a), Florida Statutes. This offense is a second degree misdemeanor punishable as provided in Sections 775.082 or 775.083, Florida Statutes. The court withheld adjudication of guilt, placed Petitioner on six months' probation and assessed Petitioner $75 in costs. Petitioner was again arrested on March 12, 1993, by the Daytona Beach Shores, Florida, Police Department. Petitioner was charged with "Driving Under the Influence of Alcohol." Section 316.193, Florida Statutes, does not equate "Driving Under the Influence of Alcohol" with either a felony or a misdemeanor until the fourth conviction. Petitioner appeared in Volusia County Court on May 11, 1993, and pled nolo contendere to the lesser charge of "reckless driving," under Section 316.192, Florida Statutes. Florida Department of Law Enforcement documents created at the time list this charge as a first degree misdemeanor. In actuality, the offense of "reckless driving" is grouped under the "State Uniform Traffic Control" statutory Chapter. Without specifying whether or not "reckless driving" constitutes a felony or misdemeanor, Subsection 316.192(2)(a) provides that upon a first conviction of reckless driving the offender shall be punished by imprisonment for a period of not more than 90 days or by a fine of not less than $25 nor more than $500, or by both. The court adjudicated Petitioner guilty of "reckless driving" and assessed $300 in fines and costs. Petitioner's sentence fits the statutory category of a "first conviction," so it is concluded that this was his first reckless driving offense. There also is no evidence of any other traffic offenses committed by Petitioner. The statutory trail of "reckless driving" runs through Sections 316.192, 322.291, 318.17, and 921.0012, and the undersigned has been unable to determine that a first offense under Section 316.192 constitutes either a misdemeanor or a felony. Sections 775.04 and 775.08(2), Florida Statutes, suggest that a first offense of "reckless driving" is neither a crime nor a misdemeanor. From this information, it is concluded that there is no affirmative proof that Petitioner was convicted of a first degree misdemeanor. It is further concluded that there is no presumption created by his plea of nolo contendere to the reckless driving charge that Petitioner lost his civil rights. On February 10, 1997, Petitioner submitted an application for licensure by examination to become a Community Association Manager. Prior to his application for licensure, Petitioner had been the subject of an investigation by the Respondent Department for the unlicensed practice of community association management. As a trusted maintenance man for the same employer for over nine years, Petitioner had been trusted with money, with purchasing supplies and with doing maintenance work. He had acquitted himself honestly and honorably. Petitioner and his employer believe that the investigation arose out of a complaint that Petitioner also was giving instructions to other maintenance personnel or advising tenants, which arguably constitutes an element of the practice of Community Association Managment. They believe that the complaint was made by a rival condominium owner and/or by a resident manager whom the employer terminated. The investigation has been abated pending the instant application licensure proceeding. The application submitted by Petitioner contained the following question regarding the applicant's criminal history: Have you ever been convicted or found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( ). This question applies to any violation of the laws of any state, territory, or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. If you answer "NO" and it is later determined that the records have not been sealed or expunged, it will be considered that you knowingly provided inaccurate information on this application. Petitioner marked the space for "No," and submitted no history of his offenses and pleas with his application. On March 12, 1997, the Agency notified Petitioner that his application was deficient because the 1983 and 1993 arrests and case dispositions were not fully disclosed and documented on his application. He was given 60 days in which to submit the required information, which he did. On May 28, 1997, Respondent sent Petitioner its Intent to Deny Community Association Manager's Application for Licensure by Examination for failure to establish good moral character as required by Section 468.433, Florida Statutes. Petitioner explained that he thought the withholding of adjudication on the second degree misdemeanor guilty plea charge meant it was erased and need not be revealed. Although Petitioner conceded that no one told him adjudication was withheld on his 1993 reckless driving charge, he first testified that somehow he initially assumed that adjudication had been withheld. The remainder of his testimony, together with Petitioner's Exhibit 1, are construed to prove that, prior to Petitioner's completion and submission of his application for licensure in January of 1997, Petitioner had been informed that adjudication of guilt had not been withheld on his 1993 plea of nolo contendere to the charge of reckless driving, because the charge and conviction had shown up in a computer check when he tried to insure a new car prior to his professional licensure application. While testifying at formal hearing, Petitioner initially stated that he had not fully read the application question concerning any criminal record. Then, he represented that he had not fully comprehended it. Finally, he said he thought the 1993 conviction constituted a traffic offense and was not a misdemeanor. Based on the difficulty of determining the classification of the 1993 conviction, the undersigned concludes that Petitioner did not willfully withhold that information, and need not have disclosed it as the application question was drafted. The question is ambiguous in first requesting information about nolo contendere pleas to felonies or misdemeanors and then adding "violation of the laws" as an afterthought. Petitioner has not had any criminal charges or traffic offenses lodged against his record since 1993. Petitioner has never been the subject of any civil law suit involving fraud, dishonesty, misrepresentation, or concealment of material facts. Petitioner is highly respected by his direct supervisor and one of the owners of the buildings he maintains, both of whom testified to Petitioner's veracity, trustworthiness, and good moral character spanning 1988 through the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order permitting Petitioner to sit for the examination. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Edward D. Broyles, Executive Director Department of Business and Professional Regulation Division of Professions Regulatory Council of Community Association Managers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Michael Kennedy, Esquire Kennedy & Pyle 687 Beeville Road, Suite A South Daytona, Florida 32119 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact It was stipulated that the Respondent was certified as a law enforcement officer by the Petitioner on April 1, 1978. He holds certificate number 99-002304. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing the qualification and practice standards for law enforcement officers embodied in Chapter 943, Florida Statutes. Sometime in November, 1986, Diane Bouchard was traveling north on U.S. 1 in Nassau County. She acknowledged that she was traveling in excess of the lawful speed limit and believes she was traveling at approximately 60 miles per hour. Shortly after passing a truck weighing station, she observed a Nassau County Sheriff's patrol car, which had just passed her, turn around and follow her. She observed the blue light on that vehicle illuminate, at which point she turned to the side of the road and stopped. Mrs. Bouchard knew Officer Crews and he was acquainted with her and her family, including her husband. Mrs. Bouchard testified that Respondent got out of his patrol car and approached her vehicle while she was sitting in her parked vehicle behind the wheel. He did not ask her to get out of the vehicle. She says that he asked for her driver's license and she complied, handing Respondent her license. Mrs. Bouchard then testified that Respondent, while standing approximately 4 inches from her car door, told her that he had "clocked" her speed at approximately 75 miles per hour. He remarked that there was an $80 fine for such a traffic infraction and "points" which could be assessed against her driving record for a speeding violation. She stated that while he was standing next to her car door making these remarks, he began rubbing his penis through his clothing, becoming visibly sexually aroused. At approximately this same time, Mrs. Bouchard states that the Respondent told her that "we could work something out" regarding the ticket. Mrs. Bouchard then testified that the Respondent's actions and statement were taken by her to mean that he was attempting to extort sexual favors from her in return for forbearing to issue her a traffic citation. She maintains that she became extremely frightened as a result of these actions and attempted to dissuade the Respondent by reminding him that he knew her family. She maintains that the Respondent then stood alternately looking at her and looking at her driver's license for several more minutes and then announced that he was going to "let her go." She then drove home, according to her statement. Mrs. Bouchard maintains that she became very upset at this episode and was particularly sensitive to being victimized in this way because she had been sexually abused for approximately 13 years by her stepfather, even after she was married. She was reluctant to reveal the incident to her husband, but because she began having nightmares about the incident her husband became concerned, and so she told him about the episode approximately a week after the accident. She felt, however, according to her testimony, that no one would believe her if she reported the incident to law enforcement authorities. Approximately three months after the incident, however, she did report the matter to personnel of the Nassau County Sheriff's Department. The alleged incident supposedly occurred in close proximity to a truck weighing station at which a law enforcement officer was present and in close proximity, in the other direction, to a public campground. The incident occurred during daylight hours at approximately 5:30 or 6:00 p.m. on U.S. 1, a heavily traveled highway in Nassau County. The weigh station and campground are approximately a quarter of a mile apart. A Department of Transportation patrol car was at the weigh station and both the weigh station and the campground were in sight of the place where Mrs. Bouchard was allegedly stopped. Officer Crews was in uniform in a marked, Nassau County Sheriff's Patrol car. Mrs. Bouchard conceded that she had been speeding when she was pulled over and that Officer Crews never asked her to get out of her car. She conceded that he did not threaten her, touch her or actually expose himself to her. He did not write her a ticket. Mrs. Bouchard testified the reason she thought Officer Crews was "coming on" to her was because she associated certain gestures he was making with things her stepfather had done to her in the past. Mrs. Bouchard was referring to the history of sexual molestation of herself by her stepfather which she says occurred for an approximate 13-year-period after her mother kidnapped her from her natural father and she went to live with her mother and stepfather. During this time period and during the time in which Mrs. Bouchard elected not to report this alleged conduct by the Respondent, she and her husband were working at a garage that serviced Sheriff department vehicles and at which another police officer was employed. Police officers were frequent visitors to the garage, but she waited over three months before she spoke to anyone in law enforcement concerning this incident. Captain Chuck Moser of the Nassau County Sheriff's Department testified on behalf of the Petitioner. He interviewed Mrs. Bouchard on January 6, 1987. She told him that the above-described incident had occurred approximately 3 months earlier. She described the incident to Captain Moser much in the same way in which she described it in her testimony at hearing. Captain Moser did not reveal any other knowledge concerning the incident in question, and the Respondent, other than what Mrs. Bouchard had told him. Fuller Crews testified on his own behalf. He is 58 years old and has been married for the past 16 years. He was employed by the Nassau County Sheriff's Department from April 1, 1978 to November 10, 1987. In 1986, he was a lieutenant in the civil division and a traffic patrolman. He knows Mrs. Bouchard and her family and has even been fishing with her husband. In his work with the Sheriff's office, he has made several hundred traffic stops during his career. He does not remember every person that he ever stopped for a traffic infraction, nor did he make a practice of issuing a traffic citation to every person he stopped. Officer Crews often simply told offenders that he would let them go if they promised to slow down, or otherwise warned them with a lecture, depending upon the particular offender's attitude. He has no recollection of stopping Mrs. Bouchard, but does not deny that he may have done so. He adamantly denies ever asking Mrs. Bouchard for sex in exchange for forbearing giving her a traffic citation or making gestures which implied that intent. He stated that if he made any gestures in the act of getting out of his car and walking up to Mrs. Bouchard's car, it would have been in the nature of adjusting his gun belt or brushing his cigarette ashes off his trousers. The testimony of the Respondent and Mrs. Bouchard thus conflicts. There were no other witnesses to the episode. It is found that, even if Mrs. Bouchard did indeed feel that the Respondent was making sexual advances to her in return for his refraining from writing her a traffic citation, that her impression was mistaken. In reaching this finding, the Hearing Officer is mindful of the Respondent's apparent sincerity and candid demeanor on the witness stand, his past unblemished record, including his apparent record as a decent citizen and family man, as well as the unrebutted testimony concerning his past friendly relations with Mrs. Bouchard and her family. Mrs. Bouchard, on the other hand, while she may not have overtly lied about the circumstances of the incident, was mistaken in her impression of the Respondent's demeanor and intent in confronting her about the traffic infraction. It is found, based in part of Mrs. Bouchard's own testimony, that her impression of the Officer's intent in approaching her and manner of conversing with her, during this episode, was affected by her admitted past history of being sexually molested for a long period of time by her stepfather, such that she quite likely could have mistakenly associated some gestures, movements and comments made by the officer with a sexual advance or overture, when in fact the Respondent intended no such activity. Thus, Mrs. Bouchard's opinion, however sincere she holds it, is sufficiently colored and affected by her emotional situation, arising out of her past personal history, so that it cannot be considered competent evidence against the Respondent and cannot establish that the incident occurred as she described it. There is no other substantial evidence that would establish that the Respondent failed to maintain good moral character in regard to this incident, which is the only such incident charged in the Administrative Complaint.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Administrative Complaint filed against Fuller W. Crews, Sr. should be dismissed in its entirety. DONE AND ENTERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 December, 1989. APPENDIX TO RECOMMENDED ORDER NO. 89-1400 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. 4 Accepted. Accepted. Accepted. 7.-17. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in accordance with the clear and convincing evidence of record. 18. Accepted. Respondent's Proposed Findings of Fact 1.-13. Accepted. COPIES FURNISHED: Joseph F. White, Esquire Department of Law of Enforcement P.O. Box 1489 Tallahassee, FL 32302 Robert J. Link, Esquire Howell Lyles and Milton 901 Blackstone Building P.O. Box 420 Jacksonville, FL 32201 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302
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
Findings Of Fact At all times relevant hereto Thomas K. Morgan was a trooper with the Florida Highway Patrol and was certified as a law enforcement officer by Respondent. On April 28, 1984, Brenda Liles, a 22-year-old woman, was returning to her home in Ruskin when she ran out of gas and pulled off on the shoulder of U.S. 41 in a rural area. Before leaving from her departure point, she realized her gas gauge was on empty and she called her father to ask him to come look for her if she was not home in 15 minutes. Trooper Morgan saw the AMC Concord parked along U.S. 41 and pulled up behind the car. Miss Liles was in the car with the doors locked and the windows rolled up. When Respondent approached her car he shined his flashlight inside the car to look for weapons or anything suspicious. Seeing the trooper, Miss Liles lowered the window to tell him she had run out of gas but her father would be along momentarily. Respondent stayed alongside Miss Liles' car and they held a general conversation for several minutes before Mr. Liles arrived. Miss Liles was dressed in shorts and tee shirt. When her father arrived he found his daughter calm and he suggested she get into his pickup truck and he would return for the AMC the following day. Respondent told Liles that he (Morgan) had a gas can he could borrow to get gas and the car could then be driven away rather than be left alongside the highway all night. Liles took the gas can and departed. He planned to stop by his home for a funnel but, even so, the round-trip for gas was expected to take no more than ten minutes. When Liles left, Respondent continued talking to Miss Liles and suddenly started shining his flashlight over her body and said, "Pussy, pussy, let me see that pussy," or "I want that pussy; open it up," or words of similar import. Miss Liles initially did not understand him and asked him what he had said. He repeated the words while shining his flashlight over her body. She immediately rolled up the window through which they had been talking (the doors had remained locked) and became very frightened and started crying. Respondent returned to his patrol car and started filling out reports. Approximately five minutes later Mr. Liles returned with the gas, saw his daughter was crying, and that she was visibly upset. After putting gas in the car, he returned the gas can to Respondent and asked his name and badge number. When the AMC was started Liles told his daughter to follow him and he drove to the sheriff's substation in Ruskin. Although Liles did not ask his daughter what had happened, he sensed it had something to do with Respondent. Upon arrival at the Sheriff's Office they encountered Trooper Donna L. Middleton who was told by Liles that they wanted to make a complaint. At this time Miss Liles was either still crying or showed visible evidence of having been crying and was quite upset. Trooper Middleton took father and daughter into an office to inquire as to the nature of the complaint. Miss Liles was having some difficulty getting the words out so Mr. Liles excused himself and went outside. Trooper Middleton gave Miss Liles complaint forms and asked her to write down what had happened. She assisted Miss Liles in the correct spelling of some of the words. As soon as she realized the nature of the complaint, Middleton called her supervisor to come to the Ruskin office. The Lileses remained at the substation until the then-Corporal Shriver arrived approximately one hour after the Lileses had arrived. At this time Miss Liles still gave the appearance of being upset and of earlier crying. Shriver took custody of the statement and the Lileses returned home. The complaint was duly processed by the Florida Highway Patrol, referred to the investigation branch, and investigated by Lieutenant Brown. Brown interviewed all the parties above named including Respondent. Following this investigation Respondent was dismissed from his employment with the Florida Highway Patrol. Respondent presented his wife and a female friend of his wife to testify that they had never heard Respondent make comments about the anatomical parts of the female body, and that such comments would be inconsistent with their impression of Respondent's character. In his testimony Respondent confirmed all of the testimony of the Lileses except Respondent's use of the language complained of, which he denied. Although all witnesses had testified that the weather was mild on the evening in question, Respondent testified Miss Liles rolled up her window because she was cold and he then returned to the patrol car. Respondent also testified that he had always been interested in work as a law enforcement officer and was very proud of his position as a trooper in the Florida Highway Patrol.
The Issue The issues for determination are whether Respondent, Frank Moore, violated section 112.313(6), Florida Statutes (2008), by misusing his position and/or resources within his trust to help Lonnie Evans in his 2008 re-election campaign for Mayor of Coleman; whether Respondent violated section 112.313(6) by engaging in a traffic stop of Timothy Brunson to discuss a pending ethics complaint; and if either or both violations are proven, what penalties should be imposed?
Findings Of Fact Frank Moore was an officer with the City of Coleman Police Department prior to Lonnie Evans' first election as Mayor, and became the Coleman Chief of Police at some point after Evans' first election as mayor. Chief Moore retired in 2010, but remains employed by the City of Coleman as a reserve officer. Lonnie Evans served as mayor of the City of Coleman for twelve years. Prior to his service as mayor, he was on the City Council for 24 years. Respondents Moore and Evans were, at all times relevant to this proceeding, subject to the requirements of chapter 112, part III, Florida Statutes, otherwise known as the Code of Ethics for public officers and employees. Lonnie Evans ran for re-election as mayor in 2008, and was defeated by Eve Carruthers. The election was held on December 8, 2008. Coleman is a small town in Sumter County, Florida, with approximately 600 residents and 200 registered voters. Because of the size of the community and the nature of their jobs, Frank Moore and Lonnie Evans know each other fairly well, and are, in turn, well-known in the community. At the time relevant to this case, the police department in the City of Coleman consisted of three officers: the police chief, one additional full-time patrol officer, and one reserve officer. During at least part of the time relevant to these proceedings, the full-time patrol officer was James Dingle. Mr. Dingle was hired in December of 2007. He was interviewed by Chief Moore and Mayor Evans, and Mayor Evans hired him on a conditional basis until his employment could be approved by the City Council, consistent with the town's charter. Mr. Dingle was on probationary status for the first year of his employment. In October 2008, Frank Moore and Lonnie Evans determined that his probation should be extended, and in December 2008, his employment was terminated by vote of the City Council. At the heart of Mr. Dingle's termination was his handling of traffic tickets and refusal to change the manner in which he handled them, after counseling by Chief Moore, and his unwillingness to follow orders given to him by his superiors. Mr. Dingle would routinely write tickets indicating that the offending driver was going less than his or her actual speed. The actual speed would be listed under "comments," whereas the speed Mr. Dingle fabricated would be listed on the ticket as the speed the offender was driving. Mr. Dingle felt it was a matter of officer discretion, and that it was "unethical" not to give drivers a break. Frank Moore, on the other hand, directed Mr. Dingle to use the actual speed when writing tickets, leaving the discretion up to the judge. After counseling by Chief Moore, Mr. Dingle continued to write tickets for the lower speed. Because he felt Chief Moore's direction to use the actual speed was unethical, he did not feel he needed to follow it. On July 24, 2009, some seven months after Mr. Dingle was fired and eight months after the mayoral election, the Florida Commission on Ethics received a complaint by Mr. Dingle against Frank Moore, alleging that Moore was campaigning for Lonnie Evans while on duty (COE Case No. 09-100). No corresponding complaint was received from Mr. Dingle with respect to Mr. Evans. Specifically, the complaint stated: On November 18, 2008, at or about 9:00 A.M. Chief Frank Moore failed to show for traffic court which he was subpoena to appear. . . . After I (James Dingle) completed traffic court, I went to the Coleman Police Department and observed Frank Moore and the current mayor Lonnie G. Evans inside the Chief's office with several copies of campaign (flyers) laying on his desk, I also observed a voters list of the residence of Coleman who were registered to vote in the city election and phone numbers. On two separate occasions, when I walked into the police station I overheard the Mayor talking to an unknown person asking them to vote for him. Note: that the Mayor Evans and Chief Moore were inside the City of Coleman Police Station and using the City office supplies for Mayor Evens' campaign. On one occasion I observed the Mayor hang the phone up in the middle of his conversation when I walked back into Chief Moore's office. Since Chief Moore is hard of hearing, I heard Chief Moore say to Mayor Evans "who else we can call." Note: that Chief Moore was on full uniform and on duty. I made contact with two of Coleman residences who advised me that Chief Moore was driving the Mayor around in the City's vehicle asking residences to vote for him. The following residences are willing to speak to any investigator in this matter: (1) Lucy Burnette . . . . (2) Ronnie Owens . . . At hearing, Mr. Dingle acknowledged that he had no personal knowledge regarding the allegation that Chief Moore and Mayor Evans were campaigning in a city-owned vehicle, and had never witnessed them doing so. Mr. Dingle's Coleman Police Department Daily Activity/Log Report for November 18, 2008, indicates that Mr. Dingle started his work shift at 12:30 p.m. and was in traffic court from 1:00 to 2:00 p.m. He claimed that he had stated the wrong time for the events because there were other days that week where he had appeared in traffic court in the morning. The time records do not support this statement. Mr. Dingle testified that on November 18, 2008, he entered the police station three times. The first time, he did not observe or hear anything unusual. The second time he entered, however, he claims that he heard Mayor Evans tell Chief Moore to "hush" or "be quiet." He also testified that he saw campaign flyers, envelopes and stamps on Chief Moore's desk. In addition, he saw a list that he believed to be a voter registration list on the desk. The third time he entered the police station, Mr. Dingle stated that he heard Chief Moore ask Mayor Evans "who else can you call to help him." He also claimed that the mayor again told the chief to be quiet because someone else was in the building. Contrary to his written complaint, Mr. Dingle did not testify that he saw Mayor Evans use the police station telephone and did not testify that he heard anyone asking for a vote. Mayor Evans owns and uses a cell phone. There is no clear and convincing evidence that any conversation that Mr. Dingle overheard took place using a city telephone. Mr. Evans' testimony that he did not use a city phone to campaign is credible and accepted. The door of the police station locks when it is shut, and must be opened either with a key from the outside, or by someone opening it from the inside. In addition, there is a pass-through window in Chief Moore's office through which he can observe people coming in and out of the police station. While Chief Moore is hard of hearing, he is not deaf, and he would have been able to see and hear people entering the building. His testimony that Evans at no time asked him to be quiet is credited. Moreover, overhearing the comment "who else can you call" and concluding that the comment was campaign-related requires a leap that the undersigned is unwilling to take. There are a variety of city-related tasks and events that could require the mayor and the chief of police to work together that have nothing to do with campaigning for office. This comment, standing alone or in connection with the other observations Mr. Dingle recounted, is not clear and convincing evidence of campaigning using city resources or during work hours. At some point, Mr. Dingle saw fit to remove a page from the typewritten list, along with a campaign flyer, from his supervisor's desk, presumably after Chief Moore left for the day. He did so at after his probation had been extended by Evans and Moore, and after he had received one if not two memos criticizing his performance. The list consists of a list of names and the designation "Coleman" under a column titled "City_Name." There is no title or heading on the document. There are no addresses, telephone numbers, or voter registration numbers on the list. There is no clear and convincing evidence indicating the nature of the list or whether it actually depicted registered voters.1/ Moreover, even if Mr. Dingle's testimony is credited, the presence of campaign flyers in the police station, standing alone, is not clear and convincing evidence of using city resources to campaign. The flyer was the same type of flyer posted in places all over town. Mrs. Moore testified that she had volunteered to stuff envelopes and print flyers for Mr. Evans, and did so at home over a period of several days. Mayor Evans supplied the stamps and envelopes. She then gave the envelopes and a box of flyers to her husband so that he could deliver the flyers to Mr. Evans and mail the envelopes from the post office adjacent to the police station. The Advocate offered no evidence to rebut this testimony. Moreover, as confirmed by the city clerk, the computer and printer in Chief Moore's office did not belong to the City of Coleman, but instead belonged to Chief Moore. Based on the totality of the evidence presented, clear and convincing evidence did not establish that Chief Moore and Lonnie Evans were engaged in campaign activities in the police station on November 18, 2008. On December 9, 2009, an Order Finding Probable Cause in COE Case No. 09-100, which forms the basis for DOAH Case No. 10- 1284, was filed by the Commission on Ethics. The finding was reported in a local newspaper in January of 2010. Cynthia Martin, a City of Coleman Council member, showed the newspaper article to Timothy Bronson. Ms. Martin had run against Lonnie Evans in a previous election for mayor, and lost. As a result of Ms. Martin's encouragement, both Timothy Bronson and his mother, Gloria Bronson, filed complaints with the Commission against Chief Moore on January 22, 2010, nearly fourteen months after the last election in which Mr. Evans was a candidate (COE Complaint No. 10-016). Both complaints stated that the mayor and the chief of police had, for each election, come to their house and asked them to vote for Mayor Evans. Both indicated that Chief Moore had stated that if Evans was not elected, then he would lose his job. The mayor of Coleman does not have the authority to hire or fire the police chief. Only the city council can take that action. Frank Moore continued to serve as police chief for the City of Coleman for well over a year after the election, until sometime in 2010, when he retired. Cynthia Martin visited the Bronson's in their home and brought a notary with her so that the Bronsons could complete the complaints against Moore and Evans. The Bronsons claimed that Chief Moore would drive by their home and pull into their driveway. They would come out to the fence and speak to him. From their position on the other side of the fence from the car, they claimed that they could see campaign signs for Lonnie Evans in the back floorboard of the patrol car. Timothy Bronson also testified that on one occasion, Lonnie Evans was in the patrol car with Chief Moore, and asked his mother to vote for him. Mrs. Bronson did not testify to any such request by Lonnie Evans, and testified that when Frank Moore came to the house, Lonnie Evans was not with him. Timothy claimed in his taped interview that Chief Moore was driving a white unmarked car, but at hearing insisted that the car Chief Moore drove on these occasions was gray. Mrs. Bronson, testified that the car was either white or "brownish." Chief Moore acknowledges that he sometimes drove by the Bronson home, usually in response to a complaint by Mrs. Bronson, such as people speeding on her street. He agrees that he sometimes stopped and spoke to her and her son, but denies talking about the mayoral race. He also flatly denies ever having Lonnie Evans in his patrol car at the Bronson home. The patrol cars have dark tinted windows in the back, and the view is obstructed by both the tint and the barrier separating the front and back seats. It is unlikely that either of the Bronsons would be able to see signs in the floorboard of the backseat from a location on the other side of the fence from the car. Mrs. Bronson admitted at hearing that she suffers from short term memory loss as a result of a medical event. Timothy Bronson filed a second complaint alleging the same thing on March 3, 2010, against Lonnie Evans (COE Case No. 10-043). He and his mother also filed amendments to their first complaint on March 17, 2010. Timothy Bronson alleged that Respondent pulled him over in order to talk to him about his complaint. Mrs. Bronson claimed that he followed her closely for a mile or so, and it intimidated her.2/ Clear and convincing evidence did not support Timothy Bronson's allegation. On April 14, 2010, Lucy Burnette also filed a complaint with the Commission on Ethics, against Lonnie Evans. In her complaint (Ethics Complaint 10-074), she claimed that Mayor Evans came with Chief Moore to the local fruit stand, in the police car while Chief Moore was in uniform, asking her to vote for him. Ms. Burnette did not file a complaint against Chief Moore. The complaint was written out by Cynthia Martin, while Ms. Burnette volunteered at the fruit stand. She acknowledged at hearing that some of the statements contained in the written statement were not true, and she wished that she had read the statement more closely before she signed it. For example, the statement in her complaint that "the former mayor asked me to vote for him while he was with the chief of police, in uniform" was not true. According to Ms. Burnette, Mr. Evans did not get out of the car and did not speak to her. Ms. Burnette testified that Chief Moore and Mayor Evans came to the fruit stand in a gray city police car. Mayor Evans was in the passenger seat. Chief Moore got out of the car, according to Ms. Burnette, and told her she needed to talk to Mayor Evans about what she wanted and she could possibly get it. The only indication as to when this incident supposedly occurred was that it happened just before the 2008 election. Ms. Burnette had an ongoing issue with the City of Coleman over her attempts to run a deli or barbeque on her property. At one point, while she claimed she was not a resident of Coleman, Chief Moore had been directed to "shut her down." She claimed that she wanted, but did not need, a license to operate, and that Chief Moore told her to talk to the mayor and he could help her get the license she sought. Although the record is unclear, it appears that her licensure problem exists because her property is not zoned for commercial use, and that in order for her to get a license, she would have to seek a variance from the city council. In any event, Mayor Evans does not issue licenses or direct them to be issued. While he may have had some influence on the decision- making process, the comment made by Chief Moore, if in fact he made it, made no reference to the election or voting for Mayor Evans. Ms. Burnette simply made the assumption that Chief Moore was implying that a vote for Mayor Evans would help Ms. Burnette's efforts to receive a license. She even referred to Chief Moore's statement as some sort of bribe by Mayor Evans, delivered through Chief Moore. Chief Moore often stopped by the fruit stand on his way home from work to buy some fruit. Lucy Burnette often complained to him about her problems related to getting a license when he stopped by. He testified that he told her, on more than one occasion, that she should talk to Mayor Evans or members of the city council about her problem, but did not talk to her about the election or ask her for votes. His testimony is credited. Lucy Burnette's written complaint indicates that there were witnesses to Chief Moore and Mayor Evans coming to the fruit stand in the police car. Investigator Maolli from the Commission on Ethics was unable to locate any witnesses to corroborate her account. On April 14, 2010, Ronnie Owens filed complaints with the Commission on Ethics against both Chief Moore and Mayor Evans (COE Complaint Nos. 10-075 and 10-076). Cynthia Martin approached Mr. Owens and told him about "the election thing," and asked him if he saw Chief Moore and Lonnie Evans in the car together. She asked him to file complaints with the Commission on Ethics, and actually wrote out the complaints for him to sign. Prior to Ms. Martin approaching him, Mr. Owens was not aware that there was any problem with the mayor and the police chief campaigning while on duty. He admitted that he filed the complaint after he had a "run-in" with Chief Moore over an incident that took place at a local store. The City of Coleman is bisected by a railroad track. Residents living in the neighborhood on the west side of the track are predominately African-American. This area of the town is sometimes referred to as "the quarters." It is not unusual for some residents of the quarters to sit at a table in a lot on the corner, or on someone's front porch, and play cards or dominos. Mr. Owens claims that prior to the election, he and some other men were sitting at Mr. Robert T's house playing dominos. Mayor Evans and Chief Moore drove up in the gray Crown Vic and walked over to the men, and Chief Moore asked them to support Lonnie Evans in his election. One of the men asked Evans for a campaign sign, and Evans indicated he did not have any with him, but would bring one back. Mr. Owens testified that Lonnie Evans later returned, in his truck, and gave a campaign sign to one of the men. Mr. Owens stated that there were five men present when Mayor Evans and Chief Moore came by the quarters. None of the other men testified at hearing, and Investigator Maolli was unable to find any who could corroborate that Evans and Moore came to the quarters in the police car while Moore was in uniform. Each incident reported by the Bronsons, Ms. Burnette, and Mr. Owens involved the use of a city-owned police car while campaigning. The City of Coleman owns three police cars: a marked patrol car, a white Crown Victoria, and a gray Crown Victoria. The passenger compartment of the police cars contains a computer, printer, video system, radar unit, and other equipment. By necessity, this equipment takes up space not normally filled in a regular vehicle. The City Council had approved Chief Moore's use of a car as a "take home" vehicle, and he used the white Crown Victoria almost exclusively. He drove the white police car back and forth to work from his home in Cedar Hill. He testified credibly that he was allowed to make stops in the city car, for example to pick up a grocery item, on his way to and from work. It was not permissible to use the car for personal entertainment or trips. Chief Moore also drove his personal car, a Buick Lucerne. Lonnie Evans stopped driving, at the urging of his wife and son, by either September or early October of 2008 because of his declining eyesight. As a consequence, he did not drive during the 2008 campaign. He was driven to campaign by his wife, Carolyn, in their red Jeep SUV, by a member of the City Council and former postmistress Vergie Everett (who passed away in February of 2010) in her Cadillac, or on one occasion, by Chief Moore in his privately-owned Buick. Both men testified credibly that when Chief Moore drove Mr. Evans, it was on a weekend and Chief Moore was dressed in jeans and a t-shirt. Both men also testified that there was one occasion when Lonnie Evans rode in the front seat of the white police car while it was driven by Chief Moore. A benefit was held to help Cleveland Williams, a former member of the city council, who had become disabled. After the benefit, the proceeds were counted at City Hall and placed in an envelope for delivery. Mayor Evans accompanied Chief Moore to deliver the funds raised at the benefit. The two men rode past the location in the quarters where the men played dominos on their way to Mr. Williams' home, but did not stop. Because of the amount of equipment and the "accumulated mess" in the police car, Mayor Evans found it exceedingly uncomfortable and was emphatic that he would not repeat the experience. With the exception of one of the men in the quarters requesting a sign, there is no claim that at any time signs or flyers or campaign literature of any kind was distributed. There was one occasion when, according to Chief Moore, campaign signs for both candidates were placed in a patrol car. On the one occasion when this occurred, teenagers had vandalized some campaign signs for both candidates. They were transported in the white police car to where the kids were congregated, and then placed in the marked patrol car and taken to the police station where the parents of the suspected were contacted and shown the signs. His testimony is credited. Based on the totality of the evidence presented, there is not clear and convincing evidence that Mayor Evans or Chief Moore ever used a city vehicle to campaign during the December 2008 election, and there is not clear and convincing evidence that Chief Moore campaigned on Lonnie Evans' behalf while on duty. Bob and Carolyn Bolesta also testified to a conversation with Chief Moore that they believed occurred shortly before the 2008 election. Both denied ever seeing Chief Moore and Mayor Evans riding in a police car together. However, they both testified that, on occasion, Chief Moore would come by their home to check on them, as Mr. Bolesta had suffered from some significant heath issues. On one occasion, the Bolestas testified that Bob Bolesta and Chief Moore discussed the election and Mr. Bolesta (who supported Eve Carruthers) expressed the view to Chief Moore that Mayor Evans "was in trouble." He stated that Chief Moore then said he would have to go see some people about the votes, and believed that Chief Moore initiated the conversation. Frank Moore acknowledged going out to the Bolestas to check on them, and enjoyed speaking with them. He denied, however, asking them to support Lonnie Evans for mayor. Chief Moore did admit politics may have been discussed with Mr. Bolesta, as Mr. Bolesta liked to talk about Coleman and what was going on in the town. Chief Moore denied initiated the discussion regarding the election and denied asking for votes. The Bolestas were also often visited by James Dingle when he was with the police department. Mr. Bolesta often attended city council meetings, and was disturbed about James Dingle's termination from the police department. The more credible evidence demonstrates that the Bolestas and Chief Moore did discuss politics as part of a general discussion, but that the discussion did not rise to the level of campaigning for Mayor Evans.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report finding that no violation of section 112.313(6) has been demonstrated. DONE AND ENTERED this 16th day of February, 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 16th day of February, 2011.
Findings Of Fact At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing. When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda. Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit. In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance. With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car. During the chase Vayda had no information to lead him to believe suspect was other than a speeder. As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol. Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977. Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
