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
The Issue The Issue for consideration is this matter is whether the Respondent, Kinnett Dairies, Inc., should be placed on the State of Florida's convicted vendors list because of its conviction on January 9, 1990 for "making false statements to a federal agency."
Findings Of Fact The Department of General Services is the state agency required, pursuant to Section 287.133(3)(d), Florida Statutes, to maintain a list of the names and addresses of those persons who have been disqualified from the public contracting and purchasing process under that section. On May 16, 1991, Kinnett, pursuant to a plea agreement with the State of Georgia, entered a plea of nolo contendere to a one count felony charge brought under Section 16-10-22, Official Code of Georgia for conspiracy in restraint of trade. On July 31, 1991, Kinnett was convicted in federal court of a one count felony charge brought under Section 1 of the Sherman Antitrust Act, for a combination and conspiracy to suppress and eliminate competition by rigging bids. Pursuant to the requirements of the Florida statute in issue here, Kinnett made timely notification of those convictions to the Florida Department of General Services. Thereafter, based on those convictions, the Department concluded it was in the public interest to place Kinnett on the convicted vendors list. The parties have stipulated that concurrently with and as a part of the agreement for the entry of the plea of nolo contendere to the state charge, Kinnett entered into an agreement with the State of Georgia whereby it paid a fine of $10,000.00 and costs of an additional $10,000.00. It also cooperated fully with the investigation of the Attorney General of the State of Georgia which led up to the charge. On the same date, May 16, 1991, Kinnett also entered into an agreement with the United States Department of Justice whereby it plead guilt to one felony count, as alleged in the information, and agreed to pay criminal penalties of $300,000.00 over a four year period and $25,000.00 in civil damages to the United States. On July 19, 1989, Kinnett entered into a settlement agreement with the State of Florida regarding possible bid rigging of school requirements contracts in Florida by various dairies and paid settlement sums of $150,000.00. All penalties and civil liabilities due to the federal and state governments have been paid. Kinnett fully cooperated with both Florida and Georgia in connection with their investigations into its activities. It also cooperated with the federal Grand Jury investigating its activities, a matter which was confirmed in an October 8, 1991 letter from the federal prosecutor to the Department. No Kinnett employees were indicted as a result of the investigations by the federal and state governments as noted. No member of Kinnett's top management had knowledge of the alleged conduct of the four employees who were implicated in the misconduct involved herein. None of those four employees are still associated with Kinnett. Kinnett has implemented an active antitrust and ethics compliance program developed with the advice and assistance of experienced antitrust counsel. Inherent in this program is the adoption of a Code of Ethics and Standards of Conduct regarding antitrust matters; establishment of an ethics committee to monitor compliance; establishment of a reporting "hotline"; adoption of new bidding procedures bringing upper management into the pricing process; implementation of a training program for all personnel; and adoption of a policy and procedure review program to oversee both internal and external review of company ethics, policies and procedures. Going beyond the minimal requirements, Kinnett has arranged for outside accountants to perform a yearly, in-depth audit of all company books and accounting and pricing practices and has retained an expert in ethics to review existing policies and procedures and make recommendations for improvement. Kinnett has maintained its long-standing involvement in both civic and charitable activities in and around the Columbus, Georgia area and employs disabled veterans and military retirees, who currently make up 38% of its workers, when possible. It was recognized by the Georgia Department of Labor for its efforts in this area. Kinnett was one of the first companies in the Columbus, Georgia area to test both employees and job applicants for drug use, and has endorsed the Mayor's Task Force for Drug Free Columbus and consistent therewith has been instrumental in assisting other companies to establish programs to address substance abuse. Its officers are active as leaders in various civic organizations and it has given generously to numerous public, civic and charitable organizations. No matters in aggravation, other than the existence of the pleas, the convictions, and the penalties involved herein was presented by the Department. No evidence was presented relating to a conviction in January, 1990.
Findings Of Fact At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.
The Issue The issue in this case is whether the Petitioner should be placed on the convicted vendor list.
Findings Of Fact On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for: a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988; a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 9th day of June, 1987.
The Issue The issue to be resolved is whether Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes (2006-2008),1/ and if so, what penalty should be imposed?
Findings Of Fact Respondent, John McAlpin, is a certified law enforcement officer, having been issued law enforcement certification No. 148408. At all times material to the allegations in the Administrative Complaint, Respondent has served as the Chief of Police of Sneads, Florida. At the time of the allegations giving rise to this case, A.G. was a 14-year-old girl from Sneads, Florida. At the start of the events at issue in this case, A.G. lived with her mother, Christina Simpson (now known as Christina Griffin); her step- father, Shelly Simpson; and her younger half-brother. On January 24, 2007, the Abuse Hotline of the Florida Department of Children and Families (DCF) received a call regarding the possible sexual abuse of A.G. by her step-father. A.G. was interviewed that same day by Amy Bates, a Child Protective Investigator, while she was still at school. Once A.G. indicated that she had been sexually abused, the initial interview was terminated, and Ms. Bates contacted Ms. Simpson for permission to have A.G. interviewed by the Child Protection Team (CPT). After receiving permission from her mother, A.G. was transported to the DCF offices and interviewed by a member of the CPT. Her CPT interview was admitted into evidence as Petitioner's Exhibit 2. Ms. Bates attempted to contact Respondent prior to the CPT interview so that, consistent with the Department's customary practice, law enforcement could observe the interview. At the time A.G.'s mother arrived at the DCF offices, Ms. Bates had not heard from Chief McAlpin, so she asked Lieutenant Daniels of the Jackson County Sheriff's Department (JCSO) to observe the interview as a courtesy to the Sneads Police Department (SPD). Lt. Daniels was already present at the DCF offices for reasons unrelated to this case. In the interview by the CPT team member, A.G. indicated that she had been molested by her stepfather, Shelly Simpson, over a period of two years, during which he touched her inappropriately and tried, without success, to have sex with her. She stated that the most recent times he had molested her were the morning of the interview, and over the Martin Luther King Day weekend. The CPT interview began at 3:15 p.m. and lasted approximately 45 minutes. At 4:00 p.m., Ms. Bates again attempted to call Chief McAlpin at SPD and was given his cell phone number, which she also called. After speaking with A.G.'s mother, Ms. Bates again called the police station at 4:28 to get an officer to accompany her to the home to meet with the stepfather. Only after contacting Lieutenant Daniels for assistance did she receive a call indicating that someone would meet her at the office of the SPD to go to the Simpson home. Ms. Bates and Ms. Simpson went to the police station where they met Officer Jarrett Tyus of the SPD. At that time, a copy of the CPT interview was left on Chief McAlpin's desk. The three adults proceeded to the Simpson's home: A.G. did not accompany them but instead went home with her aunt. Officer Tyus, Ms. Bates, and Ms. Simpson arrived at the Simpson home at approximately 5:45 p.m. Officer Tyus went to the door and spoke to Mr. Simpson, and brought him over to Ms. Bates, who reviewed the report of sexual molestation with him. Respondent arrived at the home at approximately 5:55 p.m. At that time, he spoke to Ms. Bates and to Ms. Simpson, and appeared to be aware of the nature of the allegations. Chief McAlpin stated that the allegations were out of character for Mr. Simpson, and asked Ms. Simpson if she had noticed anything, or if she and Mr. Simpson were having any problems. Chief McAlpin stated that these were serious allegations and that he did not know A.G., but he had known Mr. Simpson all of his life: that they were friends, and there would be an investigation. Ms. Bates did not observe Respondent gather any evidence at the family home that evening. Although he spoke to Shelly Simpson, he did not attempt to interview anyone at the Simpson home. Nor did he make any attempt to interview A.G. that day. Ms. Bates had concerns regarding Chief McAlpin's ability to handle the investigation objectively, given his knowledge of and prior relationship with the suspect, Mr. Simpson. Mr. Simpson was also an employee of the City of Sneads at the time. She expressed those concerns to her then- supervisor, Tamara Hudson. As a result of their conversation, Ms. Hudson called Lt. Daniels and requested that he "step in" and take over the investigation. However, the investigation remained with the SPD, and Chief McAlpin, for the time being. Typically, when there is an investigation regarding possible sexual abuse of a child, the DCF staff working the case would be in close, regular contact with the law enforcement investigator assigned to the case. However, after the evening of January 24, 2007, Ms. Bates had no face-to-face contact with Chief McAlpin during the investigation. Ms. Bates did, however, speak to him on January 31, 2007, to let him know that the CPT medical report had been received and, at his request, faxed a copy of the report to him. Once there was a determination that the complaint was founded, on February 1, 2007, the case was transferred to Anissa Cottongim, who worked as a case manager in the area of child protection. From that date until DCF closed the case in July 2007, Chief McAlpin never called Ms. Cottongim. There was, however, information provided to Chief McAlpin from DCF during this period. On February 14, 2007, Amy Bates spoke to Anissa Cottongim, who informed her that there was a possibility that there were other victims of sexual abuse by Mr. Simpson. Ms. Bates called Chief McAlpin on his cell phone and left him a message to return her call. She called again, about a half hour later, and spoke to him about the possibility of other victims. Chief McAlpin inquired whether the potential victims were family members of A.G., and was told that they were not related. Chief McAlpin indicated that Shelly Simpson had mentioned something to him the day before, and that he would call back in a few minutes and speak to Ms. Cottongim. He did not do so. Ms. Cottongim also forwarded to him the results of a psychosexual examination of A.G., although the date the report was transmitted is not apparent. Chief McAlpin denies receiving the information regarding other possible victims during his investigation. Ms. Bates' testimony is credited. On February 12, 2007, Respondent took the sworn statement of Shelly Simpson. While Mr. Simpson apparently requested a polygraph test, no such test was ever actually administered. On February 22, 2007, Chief McAlpin interviewed A.G. for the first time. He requested that Christina Simpson bring A.G. into his office for an interview. At that point, Ms. Simpson stated that she was confused and did not know "which way to go." Chief McAlpin asked for and received permission to interview A.G. alone, for the stated purpose of seeing if she were telling the truth or lying. Chief McAlpin told Ms. Simpson that he did not believe Mr. Simpson had molested A.G. The interview with A.G. was recorded, although Chief McAlpin told her the conversation was "just between us." He hid the tape recorder behind a sign on his desk so that she could not see it. The interview was over two hours and nineteen minutes long. Major Dennis of the JCSO opined that the interview sounded more like the interrogation of a suspect than the interview of a child victim. He also opined that it appeared from listening to the interview that Chief McAlpin was attempting to get A.G. to change her testimony. Major Dennis' description is an understatement. During those two-plus hours, Chief McAlpin told A.G. repeatedly that he believed she was lying and that it was "okay to make this right." While berating her, he told her he was her friend and that she was in no trouble. He also said, however, that she had told a "circle of lies" and did not want to be labeled as a liar, and that "sometimes people tell something so many times, they believe it." He asked A.G. if she was mad at her stepfather, whom he repeatedly referred to as Shelly, and that if she wanted him out of the home, Chief McAlpin could help her get what she wanted. He reminded her repeatedly that this case was serious and would affect a lot of people, and that it was time to "put some closure to this one way or another." He also asked her what she wanted to happen to her stepfather, who loved her and raised her and was like a dad to her. Respondent asked whether A.G. wanted him "locked up in prison with killers, robbers, and rapers," and stated that he did not want to put an innocent man in prison. Chief McAlpin asked A.G. how she would feel if her ten- year-old brother told people that she was doing bad things to him, and whether she would want someone to talk to him to get to the bottom of things and clear her name. He repeated several times that he believed that there were problems in the home and that A.G. had "issues" and was in need of counseling. He told this 14-year-old girl, who was alone in this lengthy interview with him, that she needed long-term, "in-house" counseling.2/ The examples given in paragraphs 21-22 are just a small sampling of the barrage of statements hurled at A.G. during this "interview." The number of questions actually asked of her could probably have been answered in a 15-20 minute span, at most. The remainder of the time, Chief McAlpin was suggesting reasons why she should recant; telling her how unbelievable she was; that there was no physical corroborating evidence; and what an ordeal she would face if she did not change her story. Yet through it all, while quietly crying, A.G. did not change her story. By contrast, Respondent acknowledged that with respect to his interview with Shelly Simpson, the suspect in this sexual molestation case, he "did not put a lot of pressure on him." At some time after interviewing A.G., Respondent spoke to Mark Sims, the State Attorney. He described the evidence that he had and opined to Mr. Sims that he did not think that there was sufficient evidence to charge Mr. Simpson. At that time, he considered the case to be over. During the time that Chief McAlpin was in charge of the investigation regarding A.G. and Shelly Simpson, A.G.'s grandfather, Robert Griffin, became very dissatisfied with the progress, or lack of it, of the investigation. He complained several times to Major Dennis of the JCSO. Eventually, on or about April 2, 2007, the JCSO took over the investigation, and the case was assigned to Lt. Daniels. Lt. Daniels did not request a copy of the investigative file compiled by Chief McAlpin, and the contents of Respondent's file are not in evidence. Lt. Daniels decided, given the controversy surrounding the case, he would start fresh. He reworked the case as if he had investigated it from the beginning. Almost immediately he arranged for a second medical exam, this time with a female doctor. Lt. Daniels interviewed all the witnesses he knew about and put together as much information as he could before interviewing Shelly Simpson, consistent with his usual practice to interview the subject of an investigation last. His interview with Mr. Simpson took place May 24, 2007. On June 28, 2007, Lt. Daniels submitted his file to Assistant State Attorney Jonna Bowman, with a criminal complaint affidavit charging Mr. Simpson with child abuse and sexual battery. When Ms. Bowman received the file from Lt. Daniels, he explained that he had taken over the case from SPD. She understood that Lt. Daniels did not have the file compiled by Chief McAlpin, and she requested the information from Respondent shortly after July 2, 2007. Respondent called her on July 5, 2007, saying he would bring her his file, along with the taped interview of A.G., the next day. He did not do so. A second request for the information was made, and again the information was promised but not provided. Ms. Bowman did receive some information in August and at some point drove to Sneads to talk to him about his investigation. At that time, Chief McAlpin kept telling Ms. Bowman that A.G.'s story had a lot of inconsistencies in it. He told her he had not quite finished his reports on the case, and did so while she was there, so he could print the information out and give it to her. Chief McAlpin also told her about his interview with A.G., which he represented to be approximately 30-45 minutes, and gave Ms. Bowman a digital recorder which was supposed to contain the interview. However, the recorder contained no interview of A.G. One of the "inconsistencies" upon which Respondent placed great emphasis had to do with the clothing A.G. wore the day that she went hunting with Mr. Simpson and shot her first deer. Chief McAlpin described a picture to Ms. Bowman in which he claimed A.G. was wearing overalls while holding her first deer. He stated that her claim that Mr. Simpson molested her that day was not credible because the molestation could not take place with A.G. wearing overalls. However, at a subsequent visit to the A.G.'s home, Ms. Bowman observed the picture of A.G. holding her first deer. She was not wearing overalls. Ms. Bowman asked again for the interview, and at some point in October 2007, a recorder labeled as belonging to SPD appeared on her desk, with no note of explanation. She found the interview difficult to listen to, but did not find the inconsistencies that Respondent claimed to exist in her story. A capias was issued for Shelly Simpson's arrest on October 9, 2007, charging him with lewd and lascivious molestation. Ms. Bowman left the State Attorney's office before the criminal trial and did not try the case. However, Mr. Simpson was found not guilty by a jury on October 3, 2008. Robert Griffin, A.G.'s grandfather, remained dissatisfied about the way the case was handled, and filed a complaint with the Governor's Office, which was referred to the Department of Law Enforcement (FDLE) in late 2007. In connection with FDLE's investigation, Chief McAlpin consented to a sworn interview by FDLE Investigator Ed Fortune. The interview, which was taped and admitted into evidence as Petitioner's Exhibit 3, is approximately 3.5 hours long. In that interview, Chief McAlpin stated that he requested the CPT interview tape on January 24, 2011, "as soon as I could get it" and got the tape through Officer Tyus. His statement conflicts with that of Amy Bates, and Ms. Bates' testimony is credited. However, inasmuch as the tape was placed on Chief McAlpin's desk as opposed to being given to him directly, it is conceivable that Chief McAlpin believed that Officer Tyus had obtained the tape and placed it there. Chief McAlpin stated that prior to the interview Ms. Simpson told him that she believed her husband and thought A.G. would admit that the story was a lie. At hearing, Ms. Simpson testified that she was confused and did not know which way to go. However, it is entirely possible that both statements are correct in that Ms. Simpson was placed in the untenable position of believing either her daughter or her husband, and may have voiced more than one opinion as time went on. Chief McAlpin also states repeatedly in the interview that he was not aware that there was information regarding additional victims when he completed his investigation. His statement conflicts with that of Shelly Bates, and Ms. Bates' testimony is credited. Further, Respondent knew it to be a false statement when he made it. During the interview with Mr. Fortune, there was some discussion regarding letters that were in A.G.'s room. These letters were characterized as inconsistent in terms of language and sexual knowledge with what A.G. had exhibited in the investigation. Chief McAlpin had become aware of the letters through either Christina Simpson or Shelly Simpson. When he did not receive the letters through Ms. Simpson, he asked Shelly Simpson to retrieve them. Chief McAlpin admitted that he had never asked any other subject of an investigation to retrieve evidence, and that the letters would have no chain of custody. He admitted that the letters had no evidentiary value, and that he could not be certain A.G. even wrote them, but in his mind they were relevant to disprove A.G.'s story. Much of the interview with Mr. Fortune deals with the quality of Respondent's investigation and the decision-making behind his investigative choices. He chose not to talk to key people in DCF because he did not know them; did not collect physical evidence; and did not clarify with DCF investigators or medical personnel those areas that he claimed were puzzling or inconsistent. In short, from a review of all of the evidence presented in this case, it appears that Chief McAlpin decided early on that A.G. was not telling the truth and conducted his investigation, to the extent he investigated at all, with the intention of disproving her allegations as opposed to investigating her complaint.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent, John McAlpin, be found guilty of failing to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and That Respondent's law enforcement certification be suspended for a period of eighteen months, followed by two years' probation. DONE AND ENTERED this 26th day of October, 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 26th day of October, 2011.
The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
