The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, 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 10th day of September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Respondent holds a certificate as a law enforcement officer, Certificate Number 02-22949. That certificate is currently inactive. Respondent was employed as a deputy sheriff with the Polk County Sheriff's Department in January of 1978. Respondent resigned this position on or about October 22, 1982. On or about September 9, 1982, Respondent was involved in the apprehension and arrest of an individual named James Pitts. A Winter Haven police officer, Dennis Warren, actually effected the arrest of the above suspect on or about September 9, 1982. During the arrest, Pitts resisted Officer Warren and in so doing, Officer Warren sustained injuries to his right hand. The area in which the struggle occurred consisted of loose dirt and gravel. Immediately after the arrest, Officer Warren's uniform was disheveled, dirty and ripped. The knuckles on his right hand were bleeding. Immediately after the arrest, Respondent's uniform was clean, not disheveled and no dirt was present. The dirt and gravel at the scene of the arrest were the type that would adhere to a uniform. After Officer Warren arrested the suspect, Respondent was unable or unwilling to walk the suspect to the police car. Another officer (Bill Stone), walked the suspect to the police car and placed the suspect in the vehicle. Respondent was present during the arrest of James Pitts and observed Officer Warren struggling with said individual. Officer Warren requested Respondent's assistance in the arrest but Respondent failed to provide such assistance. During Respondent's tenure as a deputy sheriff, he failed to assist other officers on several occasions during violent confrontations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of January, 1984.
The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
The Issue The issues in this case are whether Respondent violated sections 943.1395(7) and 943.13(7), Florida Statutes (2008),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Rodriguez was certified as a correctional officer in the State of Florida by the Commission on May 18, 2004, and was issued Correctional Certification No. 240475. On or about February 10, 2009, officers from the Kissimmee Police Department and St. Cloud Police Department participated in an undercover police operation geared to targeting individuals that intend to commit crimes involving narcotics or prostitution. They created a false advertisement for prostitution services on the website, Craigslist. The advertisement consisted of photographs and an undercover phone number to contact for sexual services. The advertisement did not indicate that it was an undercover operation. On or about that same date, Mr. Rodriguez placed a phone call using the same number on the advertisement. At the time Mr. Rodriguez placed the call, he was unaware that the advertisement was part of an undercover operation. During the phone conversation, Mr. Rodriguez communicated with Detective Takeya Close (Detective Close), an undercover agent who posed as a prostitute. Detective Close did not identify herself to Mr. Rodriguez as an undercover agent. Mr. Rodriguez communicated to Detective Close that he desired sexual services from her in exchange for money. Detective Close informed Mr. Rodriguez that the price for sexual services ranged from 50 to 80 dollars. A “quickie” service consisted of 15 minutes or less of sexual activity and cost 50 dollars. A “full service” consisted of a half-hour of sexual activity and cost 80 dollars. Mr. Rodriguez told Detective Close that he wanted a “full service” and was willing to pay her either price for her sexual services. Detective Close then provided Mr. Rodriguez a meeting location, a residential house at 4903 Newton Court in St. Cloud, Florida. Law enforcement used the residential house as part of the undercover operation. They agreed to meet at 8:45 p.m. Mr. Rodriguez arrived at the agreed time at the St. Cloud residential house that was part of the undercover operation. Detective Close, posed as a prostitute, greeted Mr. Rodriguez at the front door. Once Mr. Rodriguez entered the house, law enforcement officers arrested and detained him. During a search of Mr. Rodriguez incident to his arrest, law enforcement officers discovered his cellular phone, which contained the undercover phone number in the call history log, and 50 dollars cash. Detective Close’s credible testimony was that, on or about February 10, 2009, Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and arrived at the St. Cloud undercover residential house attempting to engage in prostitution. Mr. Rodriguez’s testimony that the purpose of his communication with Detective Close and his arrival at the St. Cloud residential house was to receive a massage was not credible. His cellular phone showed that he had called the undercover number and that he went to the St. Cloud undercover house at the agreed time. On or about April 12, 2009, Mr. Rodriguez was driving a white SUV. Devon Littlejohn (Ms. Littlejohn), a prostitute, was standing on the corner of Wakulla and Orange Blossom Trail, an area known for prostitution activity. When Mr. Rodriguez drove past where Ms. Littlejohn was standing, Ms. Littlejohn waived at him. Mr. Rodriguez made a U-turn and drove up to Ms. Littlejohn. Ms. Littlejohn approached Mr. Rodriguez while he was in his vehicle and engaged in conversation with him. Ms. Littlejohn solicited sexual services to Mr. Rodriguez by asking him if he wanted a “date.” Mr. Rodriguez answered affirmatively and then asked Ms. Littlejohn if she had a room. Ms. Littlejohn answered yes. Mr. Rodriguez then asked Ms. Littlejohn about the price for her sexual services, and she informed him that “full service” costs 80 dollars. Mr. Rodriguez agreed to pay Ms. Littlejohn 80 dollars in exchange for her sexual services. Ms. Littlejohn entered the passenger side of Mr. Rodriguez’s vehicle. Mr. Rodriguez then drove off with Ms. Littlejohn inside his vehicle. On April 12, 2009, Law Enforcement Sheriff Deputy Scott Bearns (Deputy Bearns) of the Orange County Sheriff’s Office was patrolling the Orange Blossom Trail area when he drove pass Mr. Rodriguez’s vehicle. Deputy Bearns conducted a traffic stop on Mr. Rodriguez’s vehicle for having an illegal window tint. Mr. Rodriguez pulled his vehicle over at a parking lot across the street from the place where Ms. Littlejohn was originally standing. Deputy Bearns recognized Ms. Littlejohn as a prostitute in the local area and observed her and Mr. Rodriguez in the vehicle. Mr. Rodriguez informed Deputy Bearns that he worked as a correctional officer. Deputy Bearns then escorted Ms. Littlejohn outside of Mr. Rodriguez’s vehicle and Mirandized her. Ms. Littlejohn revealed to Deputy Bearns that Mr. Rodriguez had agreed for her to perform sexual services in exchange for 80 dollars. Ms. Littlejohn provided Deputy Bearns a written statement to that effect. Deputy Bearns arrested Mr. Rodriguez for assignation to commit prostitution. Ms. Littlejohn was not arrested. Incident to the arrest, another deputy conducted a search of Mr. Rodriguez’s vehicle and discovered a total of 102 dollars cash. Ms. Littlejohn’s credible testimony was that Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and allowed her to enter his vehicle in an attempt to engage in prostitution. Mr. Rodriguez’s testimony that Ms. Littlejohn jumped in his vehicle without his consent and was hanging out of the vehicle with the door open was not credible.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Jose R. Rodriguez violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b) and revoking his certification. DONE AND ENTERED this 21st day of June, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 21st day of June, 2011.
Findings Of Fact Each Respondent holds a Class "B" Watchman, Guard, or patrol Agency License number BOO-00847 and has held such licensure at all relevant times. All references to Respondent are to Murrell security Patrol, Incorporated. All references to Respondent Murrell are to Alfred L. Murrell. Respondent's main office was at all relevant times in Melbourne, Florida. In August, 1986, Respondent leased office space for a branch office in Orlando, Florida. Respondent hired Lee Hayes as branch manager for the Orlando office. Mr. Hayes worked for Respondent from early September, 1986, until mid-January, 1987. Shortly after beginning to work for Respondent, Mr. Hayes and Respondent applied to Petitioner for, respectively, a Class "MB" branch manager's license and a Class "BB" branch office license, which were subsequently issued. Following Mr. Hayes' departure, the managerial duties of the Orlando branch office were in large part performed by Gerald Bellizzi, who supervised guards on patrol, solicited guard business, billed accounts, and collected receivables. Mr. Bellizzi had no Class "MB" license, nor any other license under Chapter 493 until he obtained, in late December, 1986, a Class "D" license, which allowed him to perform watchman, guard, or patrol duties. Respondent provided Mr. Hayes, while he served as manager of the Orlando branch office, business cards to be used in soliciting business. These cards stated that Respondent's business included investigations, in addition to guard and patrol duty. At the same time, Respondent placed an advertisement in the Southern Bell Yellow Pages in the Orlando area. The ad stated that Respondent's services included investigations. Although the Orlando branch office never performed any investigations, Mr. Hayes received two inquiries concerning the possibility of Respondent performing investigative services. In responding to the first inquiry, Mr. Hayes contacted Respondent Murrell and, with his permission, quoted an hourly rate for investigative work. In both cases, the prospective customers never asked Respondent to do any work. At all times since the incorporation of Respondent in 1976, Respondent Murrell has been its president and his son, Mike Murrell, has been Respondent's vice president.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents Alfred L. Murrell and Murrell Security Patrol, Incorporated, not guilty of the charges contained in Count III of the Administrative Complaint, but guilty of the charges contained in Counts I and II. It is further recommended that the Final Order impose an administrative fine upon respondents, jointly and severally, in the amount of $500. DONE and RECOMMENDED this 15th 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 15th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1760 Treatment Accorded Petitioner's Proposed Findings 1-3. Rejected as not finding of fact. 4a. Adopted. 4b,c. Rejected as irrelevant. First sentence adopted. Remainder rejected as recitation of testimony. Rejected as recitation of testimony and subordinate. Rejected as recitation of testimony and, in view of the nonspecificity of allegations in Count III, irrelevant. 8. Rejected as recitation of testimony and subordinate. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol Tallahassee, Florida 32399-0250 John C. Murphy, Esquire 1901 South Harbor City Boulevard Suite 805 Melbourne, Florida 32901 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 181 The Capitol Tallahassee, Florida 32399-0250
The Issue The issues in this case are whether Respondent failed to maintain good moral character by engaging in sexual conduct while on duty as a police officer and making false statements under oath, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for the certification and regulation of law enforcement officers in Florida. Petitioner certified Respondent as a law enforcement officer on April 3, 1987, pursuant to certificate number 38354. During the fall of 2002, Respondent was employed as a police officer by the Sanford Police Department in Sanford, Florida. Respondent frequently conducted official business at a local Wal-Mart when Respondent was on duty and also visited the Wal-Mart for personal reasons when Respondent was off duty as a police officer. At the Wal-Mart, Respondent developed both a professional and personal relationship with Ms. Sheila Gill, a loss prevention employee at the Wal-Mart. Respondent and Ms. Gill spoke frequently both in person and by telephone. Some of the telephone conversations between Respondent and Ms. Gill included sexual banter. When Respondent and Ms. Gill talked in person at the Wal-Mart, the two usually stood close to one another or arm-in-arm, exhibiting personal intimacy. Respondent and Ms. Gill were sometimes together in the loss prevention office at the Wal-Mart when no one else was present. The loss prevention office has one door and no windows. Security personnel at the Wal-Mart use the loss prevention office, in relevant part, to process individuals accused of shoplifting and to transfer the custody of accused shoplifters to police officers, including Respondent. At all times relevant to this proceeding, the loss prevention office was equipped with a closed-circuit television camera to permit Wal-Mart security personnel to monitor the loss prevention office and to provide a videotape record. On October 13, 2002, Respondent and another police officer responded to a call from Wal-Mart security personnel regarding an accused shoplifter. After the other police officer left the loss prevention office with the accused, Respondent and Ms. Gill were alone in the office. They moved to an area of the office in which the video camera recorded only a portion of their actions. Respondent and Ms. Gill then engaged in sexual conduct at about 4:11 p.m., while Respondent was on duty for the Sanford Police Department. On October 27, 2002, Respondent was on duty for the Sanford Police Department and was alone with Ms. Gill in the loss prevention office at the Wal-Mart. Ms. Tracy Harden was employed at the Wal-Mart as the Assistant Store Manager. Ms. Harden attempted to enter the loss prevention office in response to a complaint of a stolen wallet that Ms. Harden received from a customer. Ms. Harden found the door locked. Ms. Harden unlocked the door, entered the loss prevention office, and observed Respondent and Ms. Gill alone together in the office. Respondent and Ms. Gill were sitting embraced and quickly separated when Ms. Harden entered the room. Ms. Gill was not working at the Wal-Mart on October 27, 2002. After observing Ms. Gill in the loss prevention office with Respondent, Ms. Harden met with Ms. Gill to question her about her presence in the store that day and her conduct with Respondent. Ms. Harden suspended Ms. Gill and directed her to leave the store. Ms. Harden retrieved the videotape from the security camera in the loss prevention office. However, she did not view the tape because she did not know how to operate the equipment. Ms. Harden locked the tape in the filing cabinet in her office and left work for the day. When Ms. Harden arrived at the Wal-Mart the next day, she found the filing cabinet in her office dented and its lock broken. Upon examining the contents of the cabinet, Ms. Harden discovered the tape was the only item missing from the filing cabinet. Ms. Gill had taken the videotape from the filing cabinet and discarded it. Ms. Harden complained to the Sanford Police Department about Respondent's behavior with Ms. Gill in the Wal-Mart loss prevention office on October 27, 2002. The Sanford Police Department conducted an internal investigation into the complaint. The internal investigation included an interview with Respondent on November 7, 2002. Respondent made two false statements under oath. Respondent denied that, on October 27, 2002, Respondent was touching Ms. Gill or in close proximity to Ms. Gill in the loss prevention office. Respondent also denied ever touching Ms. Gill, hugging her, having any type of close physical contact with her, or engaging in any inappropriate or unprofessional conduct with Ms. Gill while Respondent was on duty for the Sanford Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character and revoking Respondent's certification. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 14th day of April, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kristine R. Kutz, Esquire 200 East Robinson Street, Suite 200 Orlando, Florida 32801 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.- Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges. The Notice of Injury signed by Respondent contained information which was false or misleading.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent. DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of January, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1-38 are accepted. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-5 are accepted. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph 6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is accepted; however the facts related in that form were false or misleading. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street Suite 200 Miami, Florida 33172 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
