10-000748PL Criminal Justice Standards And Training Commission vs. Jarrod Rappaport Status: Closed Recommended Order on Friday, June 4, 2010.

Summary: Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes. Recommend revocation of Respondent's certification.

Case No. 10-0748PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS RECOMMENDED ORDER ) )

AND TRAINING COMMISSION, )

Petitioner, )

)

vs. JARROD RAPPAPORT, )

)

Respondent. )

)

)

)

On April 20, 2010, a duly-noticed hearing was held by means

of video teleconferencing with sites in Tallahassee and

Gainesville, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Joseph White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Jarrod Rappaport, pro se

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondent has violated Section 943.1395(7), Florida Statutes

(2007), and if so, what penalty should be imposed for any proven

violations?

PRELIMINARY STATEMENT

On October 30, 2009, the Criminal Justice Standards and

Training Commission (Commission) issued an Administrative

Complaint against Respondent, Jarrod Rappaport, asserting that he

had violated Section 943.1395(7), Florida Statutes (2007), by

virtue of violating Section 784.03, Florida Statutes, and failed

to maintain good moral character as defined by Florida

Administrative Code Rule 11B-27.0011(4)(b) and (c). On

November 10, 2009, Respondent executed an election of rights form

disputing the facts in the Administrative Complaint and

requesting a hearing pursuant to Section 120.57(1), Florida

Statutes. On February 12, 2010, the case was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge.

On February 24, 2010, the case was noticed for hearing to be

conducted by means of teleconferencing April 20, 2010, and the

hearing proceeded as scheduled. Petitioner presented the

testimony of Felecia Stallworth, Nickole Jackson (by telephone),

Officer John Yarbrough, Stephen Topham and Sergeant Jorge Campos.

Petitioner submitted no exhibits.

Prior to the hearing, the Respondent filed a CD with the

Division. Because the CD case did not contain a certificate of

service and had no accompanying papers, it remained unopened by

the undersigned until the hearing commenced. At that time, it

was determined that a copy of the CD had been received by

opposing counsel and its contents examined. Respondent wanted

some, but not all, of the items contained on the CD to be

admitted into evidence. 1/ Respondent's Composite Exhibit 2 and

Exhibit 4 were received into evidence. Respondent's proposed

Exhibits 1 and 3 were rejected. Respondent presented no

witnesses. After substantial discussion regarding what could be

presented by means of proposed recommended orders (argument, as

opposed to testimony) and the requirement that counsel for

Petitioner be allowed to cross-examine him if he appeared as a

witness, Respondent opted not to testify at hearing.

The transcript of the proceedings was filed with the

Division on May 12, 2010. Respondent filed his Proposed

Recommended Order May 18, 2010. In reviewing Respondent's

Proposed Recommended Order, however, most of what is included is

Respondent's written account of what happened, as opposed to

proposed findings based upon the evidence that was admitted at

hearing. Accordingly, to the extent that it contains

inadmissible testimony, Respondent's Proposed Recommended Order

has not been considered in the preparation of this Recommended

Order. The Commission's Proposed Recommended Order was timely

filed on May 24, 2010. Unless otherwise indicated, all

references to Florida Statutes are to the 2009 codification.

FINDINGS OF FACT

1. Respondent is a certified law enforcement officer,

having been issued certificate number 245960.

2. On June 26, 2008, Respondent was a Gainesville Police

Department (GPD) officer assigned to a Wal-Mart store on an

overtime detail. The overtime detail was arranged in response to

complaints of vandalism and disturbances at the store by groups

of juveniles. No complaints had been registered regarding the

wrongful use of handicapped parking.

3. Late in the evening of June 26, 2008, Felecia Stallworth

drove to the Wal-Mart Store and parked her car in a handicapped

parking space in the store parking lot. A handicapped placard

was displayed hanging from Ms. Stallworth's rear view mirror.

She exited her vehicle, along with her 12-year-old son and six-

year old niece. As she headed toward the entrance of the store,

Ms. Stallworth was talking on a cell phone.

4. Respondent, dressed in his police uniform and wearing a

badge, walked up to Ms. Stallworth and spoke to her, presumably

asking for her ID. Because she was talking on the phone,

Ms. Stallworth did not hear him at first. She stopped and asked

Respondent what he wanted, and he told her to return to her car

and to provide him with proof that she was authorized to park in

a handicapped parking space.

5. Ms. Stallworth's unrebutted testimony was that

Respondent was rude and demeaning. She asked him why he needed

the information, and Respondent told her to "shut up" and again

told her to provide the requested information.

6. Respondent's comments to Ms. Stallworth were heard by

others. One bystander who did not know Ms. Stallworth previously

testified about the incident. Her testimony is consistent with

Ms. Stallworth's and is credited.

7. Ms. Stallworth returned to her car and, leaving the car

door open, sat in the driver's seat and retrieved the handicapped

registration from the glove compartment. While doing so, she

instructed the two children to get back in the car. The children

started toward the passenger car door, only to be instructed by

Respondent to stay where they were.

8. Ms. Stallworth was unhappy with the way she perceived

Respondent to be treating her. While looking for her driver's

license, she asked Respondent for his name and badge number, and

stated she intended to complain about his behavior. She could

not find her driver's license, however, because Respondent was

shining his flashlight toward her face. Ms. Stallworth asked

Respondent repeatedly to stop shining the light in her eyes, but

he continued to direct the beam of the light toward her face.

9. Ms. Stallworth decided to exit the car and place her

purse on the hood of the car to continue to look for her driver's

license. She stood up to exit the car for this purpose. She did

not tell Respondent she intended to get out of the car.

10. As soon as she stood up, Respondent pushed her up

against the side of the car, using a "blocking" type move. The

force of the impact pushed Ms. Stallworth's back against the

frame of the car, and pushed the side of her face against the

door. The action left her sitting back in the driver's seat of

the car. Respondent told her if she stood up again, he would

arrest her. Ms. Stallworth responded by telling Respondent his

behavior made no sense.

11. Ms. Stallworth experienced some burning of her face and

some back pain as a result of the incident, but had no lasting

injuries. She was, however, very upset about Respondent's

actions and especially upset about her son and niece seeing her

treated this way. She reported that her son previously wanted to

be a police officer. After the incident he no longer wanted to

pursue law enforcement as a career.

12. Ms. Stallworth located her driver's license and handed

it to Respondent. After inspecting her documentation, Respondent

returned it to her, told her to have a nice day, and then walked

toward the store entrance.

13. After Respondent left Ms. Stallworth's car, several

bystanders walked over to see if she was alright. Ms. Stallworth

obtained the names of several witnesses with the intention of

supplying them to the police department as part of a complaint

against Respondent.

14. After speaking with the bystanders, Ms. Stallworth

entered the store to make her purchase. When she exited the

store, she observed Respondent standing in the parking lot behind

her car. It appeared that he was writing down her tag number.

15. Later that evening, Ms. Stallworth called the GPD to

complain about Respondent. Her call was returned by Sergeant

Yarbrough. After hearing her complaint, Sergeant Yarbrough

discussed the matter with his immediate supervisor, and then went

to the Wal-Mart to talk to Respondent about the complaint.

16. The two men spoke at Wal-Mart in the early hours of

June 27, 2008. Respondent described his interaction with

Ms. Stallworth, and admitted pinning her against the car for

several seconds and pushing her back into the car. He justified

his behavior as necessary to protect his safety.

17. Sergeant Yarbrough felt that Respondent's attitude

deteriorated as their conversation progressed. He was defensive

and confrontational, and asked Sergeant Yarbrough, in an

aggressive tone, whether he had a problem with Respondent's

behavior in a manner that clearly indicated that Respondent did

not feel his behavior was inappropriate and did not feel anyone

else should.

18. Respondent volunteered that he had already checked with

Wal-Mart personnel about the availability of surveillance video

recording the event. Respondent reported his understanding that

the video could not be provided until Monday.

19. Sergeant Yarbrough went back to the police station and

spoke with his lieutenant about the matter. Although

Ms. Stallworth had indicated she would file her own complaint

with internal affairs, Sergeant Yarbrough referred the matter

himself as well.

20. The following Monday, June 30, 2008, Respondent

returned to the Wal-Mart. He met with loss prevention employee

Stephen Topham in the store's loss prevention office. Respondent

asked for a copy of the video recording from the store's security

cameras for the time period covered by the June 28, 2008,

incident with Ms. Stallworth.

21. Wal-Mart's policy was to release copies of security

tapes only where a customer presents a police report; a subpoena

is produced; or a law enforcement officer or high-ranking

official in Wal-Mart requests a copy.

22. Mr. Topham provided Respondent with a copy of the

security video because he was a law enforcement officer in

uniform or identified himself as a law enforcement officer. He

assumed the request was made for official law enforcement

purposes and did not ask questions.

23. The Respondent was not conducting any police

investigation and had no official need for the videotape. He did

not fill out any paperwork regarding the collection of the

videotape and did not turn the tape over to the GPD's evidence

room.

24. The GPD's policy provides that whenever a police

officer uses physical force against a citizen, the officer must

document the incident with a written report. Respondent did not

complete a written report with respect to the incident involving

Ms. Stallworth.

25. Subsequent to Respondent's obtaining a copy of the

security tape from Wal-Mart, Sergeant Campos from GPD's Office of

Internal Affairs called the store to request a copy of the tape

for his investigation. When he went to obtain the tape, he was

told another officer had already picked it up. Sergeant Campos

was then provided with a copy of the security footage from the

June 28, 2008, incident, as well as footage of Respondent in the

security office on June 30, 2008.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

27. The Criminal Justice Standards and Training Commission

is responsible for the certification and regulation of law

enforcement officers and instructors. § 943.12, Fla. Stat.

28. In this case, the Commission seeks to take disciplinary

action against Respondent's certification as a law enforcement

officer. This disciplinary action by Petitioner is a penal

proceeding, and Petitioner bears the burden of proof to

demonstrate the allegations in the Administrative Complaint by

clear and convincing evidence. Department of Banking and Finance

v. Osborne Sterne & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

29. As reiterated by the Supreme Court of Florida,

Clear 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 lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

30. Section 943.13, Florida Statutes, establishes the

minimum qualifications for certification of law enforcement

officers in the State of Florida. Among those qualifications is

the requirement that a law enforcement officer possess good moral

character, as determined by a background investigation under

procedures established by the Commission.

31. Once an officer is certified, Section 943.1395(7),

Florida Statutes, authorizes the Commission to define good moral

character by rule for the purpose of imposing discipline.

Subsection (6) outlines the procedure the Commission follows upon

receiving a complaint against a law enforcement officer.

Subsections 943.1395(7) and (8) provide:

(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.

(8)(a) The commission shall, by rule,

adopt disciplinary guidelines and

procedures to administer the penalties

provided in subsections (6) and (7).

The commission may, by rule, prescribe

penalties for certain offenses. The

commission shall, by rule, set forth

aggravating and mitigating circumstances

to be considered when imposing the

penalties provided in subsection (7).

(b)1. The disciplinary guidelines and

prescribed penalties must be based upon

the severity of specific offenses. The

guidelines must provide reasonable and

meaningful notice to officers and to the

public of penalties that may be imposed

for prohibited conduct. The penalties

must be consistently applied by the

commission.

32. Pursuant to the mandate in Section 943.13(7), the

Commission has defined good moral character for the purposes of

discipline. Florida Administrative Code Rule 11B-27.0011(4)

provides in pertinent part:

(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) Except as otherwise provided in Section

943.13(4), F.S., . . . 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. Section . . . 784.03, . . . F.S.

* * *

(c) The perpetration by an officer of acts

or conduct that constitute the following

offenses:

1. Excessive use of force, defined as a use

of force on a person by any officer that is

not justified under Section 776.05 or 776.07,

. . . .

2. Misuse of official position, defined by

Section 112.313(6), F.S.

33. Section 784.03(1), Florida Statutes, provides that a

battery occurs when a person "actually and intentionally touches

or strikes another person against the will of the other"; or

"intentionally causes bodily harm to another person."

34. Section 112.313(6), Florida Statutes, which prohibits

the misuse of one's official position, provides:

No public officer, employee of an agency, or

local government attorney shall corruptly use

or attempt to use his or her official

position or any property or resource which

may be within his or her trust, or perform

his or her official duties, to secure a

special privilege, benefit, or exemption for

himself, herself, or others.

35. The Administrative Complaint in this case alleged the

following facts in support of discipline:

(2)(a) On or about June 26, 2008, the

Respondent, Jarrod Rappaport, did unlawfully

commit a battery upon Felecia Stallworth, by

actually touching or striking Felecia

Stallworth or intentionally causing bodily

harm to Felecia Stallworth against her will.

(b) On or about June 30, 2008, the

Respondent, Jarrod Rappaport, did then

corruptly use or attempt to use his official

position as a Law Enforcement Officer, or any

property or resource within his trust, or did

perform his official duties, in such a manner

as to secure a special privilege, benefit, or

exemption for himself or others, to wit:

Rappaport presented himself to Wal-Mart

Security as a police officer investigating an

incident in order to retrieve video footage

for his personal reasons.

36. Petitioner has proven the allegations in the

Administrative Complaint by clear and convincing evidence. When

Officer Rappaport pushed Ms. Stallworth against her car, causing

her to fall back into the driver's seat, he committed a battery

as prohibited by Section 784.03, Florida Statutes. Commission of

a battery is within the definition of failure to maintain good

moral character pursuant to Rule 11B-27.0011(4)(c), and is

therefore a violation of Section 943.1395(7), Florida Statutes.

37. Respondent has argued that when he pushed

Ms. Stallworth, he did so in self defense. However, he presented

no evidence to support such a claim, and the evidence in the

record does not do so. Ms. Stallworth simply went from sitting

in her car, to standing at the car door. She was not under

arrest, and had not committed or threatened any act of violence

or aggression. Her only actions had been to complain about

Respondent's behavior, and to ask him repeatedly not to shine a

flashlight into her eyes, so that she could produce the

documentation he was demanding. While telling Respondent she

intended to stand up might have been advisable, it was not

required. No need for self defense was established.

38. The Administrative Complaint does not specify whether

Respondent's actions constituted an excessive use of force (Rule

11B-27.0011(4)(c)1.), or an abuse of official position (Rule 11B-

27.0011(4)(c)2.). However, in its Proposed Recommended Order,

the Commission asserts that the conduct alleged in the

Administrative Complaint regarding the retrieval of the

surveillance video represents an abuse of official position. The

evidence established that Wal-Mart only allowed release of the

video under limited circumstances, including a request from a

police officer. When Respondent requested the video tape from

Mr. Topham, he had no official basis for doing so. There was no

pending investigation of Ms. Stallworth. He was not

investigating the internal affairs inquiry regarding his own

conduct. He did not follow GPD protocols regarding the chain of

custody for evidence and did not submit the tape to the GPD

evidence room for safekeeping. Instead, the only logical

inference that can be drawn from his actions is that he retrieved

the videotape for his own purposes, and did so by presenting

himself as a police officer on official business. Petitioner has

shown by clear and convincing evidence that Respondent misused

his official position for his personal benefit. Misuse of

Respondent's official position is evidence of failure to maintain

good moral character as defined in Rule 11B-27.0011(4)(c)2., and

is a violation of Section 943.1395(7), Florida Statutes.

39. The Commission has adopted disciplinary guidelines to

give notice of the customary penalty to be imposed for violations

of Section 943.1395(7), Florida Statutes. See Fla. Admin. Code

R. 11B-27.005. With respect to the commission of a battery and

misuse of official position, in each instance, in the absence of

aggravating or mitigating factors, the guideline penalty is

suspension. Rule 11B-27.005(5)(b)2. and (c)3.

40. Florida Administrative Code Rule 11B-27.005(6) also

lists aggravating and mitigating factors to be considered by the

Commission when imposing penalties. This portion of the rule

provides in pertinent part:

(6) The Commission shall be entitled to

deviate from the disciplinary guidelines in

this rule section, upon a showing of

aggravating or mitigating circumstances by

evidence presented to the Commission, if

pursuant to Section 120.57(2), F.S., or to an

Administrative Law Judge, if pursuant to

Section 120.57(1), F.S., prior to the

imposition of a final penalty. The

Commission shall base a deviation from the

disciplinary guidelines upon a finding of one

or more of the following:

(a) Aggravating circumstances:

1. Whether the certified officer used

official authority to facilitate the

misconduct.

2. Whether the misconduct was committed

while the certified officer was performing

other duties.

3. The number of violations found by the

Commission.

4. The number and severity of prior

disciplinary actions taken against the

certified officer by the Commission, provided

the officer was previously disciplined by the

Commission within the preceding eight years

or received a Letter of Guidance within the

preceding five years.

5. The severity of the misconduct.

6. The danger to the public.

7. The actual damage, physical or otherwise,

caused by the misconduct.

8. The lack of deterrent effect of the

penalty imposed by the employing agency.

9. The pecuniary benefit or self-gain to the

officer realized by the misconduct.

10. Whether the misconduct was motivated by

unlawful discrimination.

11. Any behavior constituting “domestic

violence” defined by Section 741.28(2), F.S.

12. Whether the certified officer has

previously received a Letter of

Acknowledgement within the preceding three

years.

(b) Mitigating circumstances:

1. The officer’s employment status in a

position requiring Commission certification

at the time of the final hearing before the

Commission.

2. The recommendations of character or

employment references.

3. The lack of severity of the misconduct.

4. The length of time the officer has been

certified by the Commission.

5. Any effort of rehabilitation by the

certified officer.

6. The effect of disciplinary or remedial

action taken by the employing agency or

recommendations of the employing agency

administrator.

7. The recommendation of a Probable Cause

Panel to impose a penalty below the penalty

guideline.

8. Effort of the officer to retract a false

statement prior to the close of the

disciplinary or criminal investigation.

41. Based upon the evidence at hearing, several aggravating

factors are present and must be considered. Respondent used his

official authority to facility the misconduct, when he presented

himself in uniform to obtain a copy of the video surveillance.

Respondent's mistreatment of Ms. Stallworth occurred while he was

on duty for an overtime detail. Two violations of Section

943.1395(7) have been proven. The misconduct was significant,

causing both embarrassment and shortlived pain for

Ms. Stallworth, and a loss of respect for law enforcement in

general on the part of Ms. Stallworth's son.

42. No evidence of mitigation was presented.

43. In determining whether the aggravating factors justify

an increase in penalty, as advocated by Petitioner, the

undersigned is mindful of the position of trust that a law

enforcement officer holds in today's society. A cursory view of

Chapter 943, Florida Statutes, illustrates the breadth of

responsibilities law enforcement must embrace. Officers are

called upon to diffuse volatile situations and to act quickly in

order to protect the public. They deal with both our society's

most violent and most fragile citizens. Because of the pivotal

role played by police officers in protecting the public and

maintaining civil order, it is essential that they have and use

good judgment in carrying out their duties.

44. It is good judgment that was sadly lacking in the

events giving rise to this proceeding. It is this lack of

judgment, as evidenced by the aggravating factors outlined above,

that compels the conclusion that revocation of Respondent's

certificate is appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Criminal Justice Standards and Training Commission

enter a final order finding that Respondent has violated the

provisions of Section 943.1395(7), Florida Statutes, and revoking

his certification.

DONE AND ENTERED this 4th day of June, 2010, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 2010.

ENDNOTE

1/ For purposes of the record, inasmuch as Respondent's exhibits

are some, but not all of the contents of the CD, they are

identified as follows: Composite Exhibit 2 consists of four video

clips labeled "rooftop 03_6.26.20" contained in the visual subfile

of the visual and audio file on the CD. Respondent's Exhibit 4

consists of pages 19-21 of the file labeled Probable Cause. No

other documents or other contents of the CD were admitted into

evidence.

COPIES FURNISHED:

Joseph S. White, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Jarrod Rappaport

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

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.