08-002072PL Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. John T. Marich Status: Closed Recommended Order on Thursday, October 30, 2008.

Summary: Petitioner failed to establish that Respondent took fuel from employer for his personal use or for the use of someone not entitled to use the fuel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-2072PL

)

JOHN T. MARICH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on August 21 and 22, 2008, in Apalachicola, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Philip F. Lupo, Esquire

319 South Washington Avenue, Suite 102

Titusville, Florida 32796-3589

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Subsections

943.1395(7) and 943.13(7), Florida Statutes (2007), 1 and Florida

Administrative Code Rule 11B-27.0011(4)(b), and, if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

On February 6, 2008, Petitioner, Department of Law

Enforcement, Criminal Justice Standards and Training Commission

(Commission), filed an Administrative Complaint against

Respondent, John T. Marich (Mr. Marich), alleging that he had

violated Subsections 943.1395(7) and 943.13(7), Florida

Statutes, and Florida Administrative Code Rule 11B-

27.0011(4)(b). Mr. Marich requested an administrative hearing,

and the case was forwarded to the Division of Administrative

Hearings on April 24, 2008, for assignment to an Administrative

Law Judge to conduct the final hearing. The case was originally

assigned to Administrative Law Judge Charles C. Adams, but was

transferred to Administrative Law Judge Susan B. Harrell to

conduct the final hearing.

The final hearing was originally scheduled for June 17,

2008. Mr. Marich moved for a continuance, and the final hearing

was re-scheduled for July 21, 2008. Mr. Marich moved for

another continuance, and the final hearing was re-scheduled for

August 22, 2008. The parties later advised that the final

hearing would take two days, and the final hearing was re-

scheduled to commence on August 21, 2008.

On August 1, 2008, the Commission filed its first and

second notices of its intention to rely on similar fact

evidence.

On August 14, 2008, the Commission filed an unopposed

Motion for Leave to Amend the Administrative Complaint. The

motion was granted, and the Commission filed an Amended

Administrative Complaint on August 19, 2008.

The parties entered into a Pre-hearing Stipulation and

stipulated to certain facts contained in Section (8) of the Pre-

hearing Stipulation. Those facts have been incorporated into

this Recommended Order, to the extent relevant.

At the final hearing, the Commission called the following

witnesses: Chester Creamer, James Ward, Goldie Harris, Rodney

Glass, and Dewey Williams. Petitioner’s Exhibits 1 and 2 were

admitted in evidence. Mr. Marich testified in his own behalf

and called the following witnesses: John Ford, Jonathan Riley,

Robert Shelley, Mike Mock, Anthony Sapp, Bruce Varnes, and

Charles Nichols. Respondent’s Exhibits 1 and 6 were admitted in

evidence.

The three-volume Transcript was filed on September 5, 2008.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. On

September 12, 2008, Respondent filed a request for extension of

time to file proposed recommended orders. The request was

granted by Order dated September 12, 2008, extending the time

for filing proposed recommended orders to October 15, 2008. The

parties timely-filed their Proposed Recommended Orders, which

were considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Marich was certified by the Commission on

February 2, 1971, and was issued Law Enforcement Certificate

Number 47090. At all times material to the Amended

Administrative Complaint, Mr. Marich was employed as a law

enforcement officer with the Franklin County Sheriff’s Office

(Sheriff’s Office).

2. In October and part of November 2007, Mr. Marich was a

lieutenant assigned to the duty of road supervisor, which meant

that he supervised six men in 12-hour shifts. Mr. Marich was

issued a marked patrol car to use in the performance of his law

enforcement duties. Mr. Marich’s patrol car was a Ford Crown

Victoria. No evidence was presented to establish the year the

patrol car was manufactured.

3. The Sheriff’s Office provided gasoline to run the

patrol cars assigned to its employees. The gasoline was the

property of the Sheriff’s Office. The Sheriff’s Office's

fueling station was located behind the jail. The fueling

station is a self-serve station. Each officer would pump the

gasoline into his or her patrol car and log the amount on a log

book kept near the pump.

4. The gasoline dispensed from the pump by the law

enforcement officers was to be used only by the law enforcement

officers to carry out their official duties. The Sheriff’s

Office, as owner of the gasoline, did not authorize or consent

to any appropriation of gasoline for any law enforcement

officer’s private use or personal benefit.

5. In October and November 2007, Mr. Marich carried one or

more gasoline cans in the trunk of his patrol car. His

supervisor, Major Chester Creamer, did not direct Mr. Marich to

carry gasoline cans in his patrol car to assist stranded

motorists or other deputies. Major Creamer is not aware of any

of the other Sheriff's Office's law enforcement personnel

carrying gasoline cans in their patrol cars.

6. Mr. Marich worked 12-hour shifts from 6:00 p.m. to

6:00 a.m. on October 26 and 27, 2007; October 28 and 29, 2007;

October 31 and November 1, 2007; November 5 and 6, 2007; and

November 6 and 7, 2007. On the intervening days, Mr. Marich was

not on duty.

7. The Sheriff’s Office had reason to believe that

gasoline was being taken without authorization from the

Sheriff’s Office’s fueling station. Surveillance video cameras

were set up at the fueling station. Petitioner’s Exhibit 1 is a

video disc made from the recordings of the surveillance video

cameras. The disc fairly and accurately depicts Mr. Marich on

October 27 and 29, 2007, and November 2, 6, and 7, 2007, while

at the fueling station located at the Sheriff’s Office,

knowingly dispensing gasoline into the fuel tank of his assigned

Sheriff’s Office's patrol car and also into a gasoline can or

cans located in the trunk of Mr. Marich’s patrol car.

8. Mr. Marich claims that the gasoline which he was

dispensing into gasoline cans in the trunk of his patrol car was

used for official purposes. He claims that he helped stranded

motorists; that he used more than a tank of gasoline on each

shift and needed the extra gasoline so that he would not run out

of gasoline; and that his wife, who is an employee of the

Sheriff’s Office, would often forget to fill her Sheriff’s

Office's vehicle with gasoline, and he had to put gasoline in

her vehicle from the cans in the trunk of his patrol car.

9. It is not a frequent occurrence for the Sheriff's

Office's law enforcement officers to help motorists who have run

out of gasoline. Normally, a deputy assisting such motorists

would take the motorist to the nearest service station so that

the motorist can purchase gasoline or the deputy would get a

gasoline can and go to the nearest service station to get

gasoline, and the motorist would be responsible for paying for

the gasoline. However, there have been exceptions to this

method of aiding stranded motorists when the motorist was unable

to pay for the gasoline. A deputy could get enough gasoline

from the Sheriff's Office's fueling station to get the motorist

home. The deputy was to log the amount of gasoline taken and

note in the log that the gasoline was for a stranded motorist.

10. Mr. Marich has provided stranded motorists with

gasoline from the cans in the back of his patrol car in the

past. On one such occasion, he was called by the then sheriff

to aid a motorist who had run out of gasoline. Mr. Marich

responded to the call and provided the motorist with gasoline.

The then sheriff approved of Mr. Marich carrying gasoline in the

trunk of his patrol car for such purposes.

11. When a Sheriff's Office's law enforcement officer

encounters a disabled vehicle, including vehicles that are out

of gasoline, the officer is to advise the dispatcher for the

Sheriff’s Office that he or she has encountered a disabled

vehicle and give the location of the vehicle. The officer is

also supposed to log the encounter on the Sheriff's Office's

computer system and to run a check on the vehicle's license tag

to make sure the vehicle is not stolen. From October 27 through

November 7, 2007, the records for the Sheriff's Office do not

contain any record of Mr. Marich encountering a disabled vehicle

and providing assistance to a stranded motorist. No evidence

was provided to establish that Mr. Marich noted on the log that

he had used gasoline for a stranded motorist.

12. On at least one occasion prior to October 2007,

Mr. Marich has provided gasoline from the cans in the back of

his patrol car to a deputy, other than his wife, who had run out

of fuel.

13. No evidence was presented to rebut Mr. Marich’s claims

that he used the gasoline that he put in the cans in the back of

his patrol car for the patrol car that his wife used in her

official duties with the Sheriff’s Office. Thus, his testimony

is credited.

14. No evidence was presented to rebut Mr. Marich’s claims

that he used the gasoline that he put in the cans in the back of

his patrol car for his patrol car while he was on road patrol.

Thus, his testimony is credited.

15. Mr. Marich was terminated from his employment with the

Sheriff’s Office on November 7, 2007, for the unauthorized

taking of gasoline. Major Creamer inspected Mr. Marich’s patrol

car within an hour of Mr. Marich’s termination. Major Creamer

noticed a strong smell of gasoline in the interior of the car,

which was emanating from the trunk of the car. The odor

lingered after several cleanings, and the matting had to be

removed from the trunk to get rid of the gasoline smell.

16. During 2006 and 2007, Mr. Marich drove a blue, two-

tone Dodge pickup truck as one of his personal vehicles. On two

occasions, Mr. Marich was observed siphoning gasoline from a

Sheriff’s Office's patrol car into a gasoline can and pouring

the gasoline into a blue, two-tone Dodge pickup truck. However,

the Commission did not establish by clear and convincing

evidence that the gasoline in the patrol car was the property of

the Sheriff’s Office. Mr. Marich could have bought the gasoline

and put it in the patrol car. Thus, the siphoning of the

gasoline does not establish that Mr. Marich stole the gasoline.

17. There was testimony from a mechanic, who had worked on

the Sheriff’s Office’s patrol cars for several years, that Ford

Crown Victoria's had an anti-siphoning device which prevented

gasoline from being siphoned from the fuel tank. The mechanic

did not know when Ford Motor Company began installing the anti-

siphoning devices and had not examined the patrol car driven by

Mr. Marich to determine whether it contained an anti-siphoning

device or to determine whether anyone had tampered with the

gasoline nozzle. Thus, the mechanic’s testimony is not credited

with establishing that gasoline could not be siphoned from the

patrol car driven by Mr. Marich.

18. The evidence is not clear and convincing that

Mr. Marich used the gasoline that he put in the gasoline cans in

the trunk of patrol car on the dates alleged in the Amended

Administrative Complaint for his personal benefit or for the

benefit of others who were not authorized to use the gasoline.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

20. The Commission has the burden of establishing the

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). Clear and

convincing evidence has been described by the courts as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witness must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact the firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

21. The Commission has alleged that Mr. Marich violated

Subsections 943.1395(7) and 943.13(7), Florida Statutes, and

Florida Administrative Code Rule 11B-27.0011(4)(b), in that he

“did knowingly and unlawfully obtain or use or did endeavor to

obtain or use, money or property valued at one hundred dollars

($100) or more, the property of the Franklin County Sheriff’s

Office, with the unlawful intent to either temporarily or

permanently deprive the Franklin County Sheriff’s Office of a

right to the property or a benefit therefrom or to appropriate

the money or property to his own use or to the use of any person

not entitled thereto.” The Commission alleged that these

actions violated provisions of Subsection 812.014(2)(e), Florida

Statutes, or any lesser included offenses.

22. Subsection 943.1395(7), Florida Statutes, provides:

(7) Upon a finding by the commission that a

certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by

s. 943.13(7), the commission may enter an

order imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status for

a period not to exceed 2 years, subject to

terms and conditions imposed by the

commission. Upon the violation of such

terms and conditions, the commission may

revoke certification or impose additional

penalties as enumerated in this subsection.

(d) Successful completion by the officer of

any basic recruit, advanced, or career

development training or such retraining

deemed appropriate by the commission.

(e) Issuance of a reprimand.

23. Subsection 943.13(7), Florida Statutes, provides that

law enforcement officers shall “[h]ave a good moral character as

determined by a background investigation under procedures

established by the commission.”

24. Florida Administrative Rule 11B-27.0011(4)(b)

provides:

(4) For the purposes of the Criminal

Justice Standards and Training Commission’s

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer’s failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

* * *

(b) The perpetration by an officer of an

act that would constitute any of the

following misdemeanor or criminal offenses

whether criminally prosecuted or not:

1. Sections . . . 812.014, . . . F.S.

25. Section 812.014, Florida Statutes, provides:

(1) A person commits theft if he or she

knowingly obtains or uses, or endeavors to

obtain or to use, the property of another

with intent to, either temporarily or

permanently:

(a) Deprive the other person of a right to

the property or a benefit from the property.

(b) Appropriate the property to his or her

own use or to the use of any person not

entitled to the use of the property.

26. It is undisputed that on October 27 and 29, 2007, and

November 2, 6, and 7, 2007, Mr. Marich did pump gasoline

belonging to the Sheriff’s Office into one or more gasoline cans

in the trunk of his patrol car while on duty as a deputy sheriff

for the Sheriff’s Office.

27. The evidence does not establish by clear and

convincing evidence that Mr. Marich took the gasoline on the

dates in question for his personal benefit or for the benefit of

other persons who were not entitled to use the gasoline.

Testimony of witnesses did establish that in the past

Mr. Marich had used the Sheriff’s Office's gasoline for stranded

motorists, for use in his patrol car for his official duties,

and for other law enforcement personnel in their official

duties, including his wife. There was evidence to establish

that Mr. Marich had siphoned gasoline from a Sheriff’s Office's

patrol car and put the gasoline into a pickup truck. However,

there was no clear and convincing evidence that that the

gasoline in the patrol car came from the Sheriff’s Office’s

fueling station.

28. The Commission established that Mr. Marich siphoned

gasoline from a Sheriff's Office's patrol car on two occasions.

However, the Amended Administrative Complaint did not allege

that Mr. Marich had stolen gasoline from the Sheriff’s Office on

those two occasions. Mr. Marich can not be found guilty of a

violation of conduct not alleged in the Amended Administrative

Complaint. See Marcelin v. State Dept. of Business and

Professional Regulation , 753 So. 2d 745 (Fla. 3d DCA 2000).

Additionally, even if the siphoning of the gasoline had been

alleged in the Amended Administrative Complaint, the evidence

did not establish by clear and convincing evidence that the

gasoline in the patrol car was the property of the Sheriff's

Office.

29. The Commission has failed to establish that Mr. Marich

violated Subsections 943.13(7) and 943.1395(7), Florida

Statutes, or Florida Administrative Code Rule 11B-27.0011(4)(b).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that John T. Marich did not violate Subsections 943.13(7) and

943.1395(7), Florida Statutes, and Florida Administrative Code

Rule 11B-27.0011(4)(b), and dismissing the Amended

Administrative Complaint.

DONE AND ENTERED this 30th day of October, 2008, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 version.

COPIES FURNISHED :

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Philip F. Lupo, Esquire

319 South Washington Avenue, Suite 102

Titusville, Florida 32796-3589

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.