99-002515 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Timothy Davis Status: Closed Recommended Order on Friday, December 3, 1999.

Summary: Recommended Order suspending the certification of a police officer who submitted three false incident reports three years earlier but who has subsequently retired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 99-2515

)

TIMOTHY DAVIS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on October 1, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Andrew Axelrad, Esquire

Dade County Police Benevolent Association

10680 Northwest 25th Street

Miami, Florida 33172

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations contained in the Administrative Complaint filed

against him, and, if so, what disciplinary action should be

taken against him, if any.

PRELIMINARY STATEMENT

On February 5, 1999, the Criminal Justice Standards and

Training Commission issued an Administrative Complaint alleging

that Respondent had violated the statutes and rules regulating

his conduct as a certified law enforcement officer, and

Respondent timely requested an evidentiary hearing regarding

those allegations. This cause was thereafter transferred to the

Division of Administrative Hearings to conduct an evidentiary

proceeding.

At the commencement of the final hearing, the Commission

dismissed with prejudice paragraph 2(a) of the Administrative

Complaint.

The Commission presented the testimony of Senior Corporal

George McReynolds, Sergeant Wayne H. Clark, Pedro Barillas,

Katherine Wilson, Pauline Gombos, and Lieutenant Reynaldo

Gonzalez. Respondent Timothy Davis testified on his own behalf.

Additionally, Petitioner's Exhibits numbered 2-11 were admitted

in evidence.

Both parties submitted proposed recommended orders after

the conclusion of the final hearing. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice

Standards and Training Commission on January 12, 1973, and was

issued law enforcement certificate numbered 54897.

2. Respondent was employed by the Miami-Dade Police

Department on July 17, 1972, and retired from the Department on

June 30, 1997.

3. On November 27, 1996, Respondent completed and signed

an Offense-Incident Report, reporting that 10 packs of

cigarettes had been stolen that day from the Mobil gas station

located at 20310 Old Cutler Road. According to the Report, Kay

Wilson reported the theft to Respondent. The Report was self-

generated, which means that Respondent initiated the Report,

rather than the complaint being assigned to him by dispatch.

4. The Report initially reflected that the theft occurred

at the Chevron station across the street, but Respondent changed

the Report to reflect that it was the Mobil gas station when he

turned in the Report to Sergeant Wayne Clark that day. The

Report was subsequently assigned to a detective.

5. No cigarettes had been stolen that day from the Mobil

station or from the Chevron station across the street. Further,

neither Kay Wilson nor Pauline Gombos reported a cigarette theft

to Respondent.

6. Computer-generated records and Respondent's own Daily

Activity Report reveal that Respondent spent one hour and twenty

minutes completing the Offense-Incident Report, finishing just

before the end of his shift. While Respondent was completing

the Offense-Incident Report, he was not available to respond to

other routine calls for service.

7. On December 10, 1996, Respondent completed and signed a

one-page Miscellaneous Incident Report, advising that

Luis Gonzalez reported that an unknown subject had scratched the

paint on the entire left side of Gonzalez' vehicle with a sharp

object, causing damage estimated at $300. The incident

allegedly occurred at an Allstate office, located at 20330 Old

Cutler Road. This Report was self-generated by Respondent. He

gave the Report to Corporal McReynolds at the end of his shift,

and the Report was assigned to a detective.

8. A State Farm office, not an Allstate office, is located

at the address on the Report. No one named Luis Gonzalez worked

at that office, and State Farm did not have a customer or

claimant by that name. Further, no one with the name Luis

Gonzalez was a customer of the nearby Allstate office.

9. The address of Luis Gonzalez listed on the Report is

the address of Centennial Middle School, and no employee named

Luis Gonzalez worked there. The telephone number for Luis

Gonzalez on the Report is the unlisted residential telephone for

a police officer, who had had that phone number for six years

and who did not know Luis Gonzalez.

10. The Department of Highway Safety and Motor Vehicles

had no record of the vehicle tag number or the vehicle

identification number listed on the Report. Further, the

vehicle identification number on the Report did not match the

described vehicle, a 1993 Nissan pick-up truck. It did not

begin with the correct letters for a Nissan and did not have

letters and numbers in the correct sequence for a Nissan.

11. Computer-generated records and Respondent's own Daily

Activity Report reveal that Respondent spent one hour and ten

minutes completing the one-page Miscellaneous Incident Report,

finishing just before the end of his shift. While Respondent

was completing the Report, he was not available to respond to

other routine calls for service.

12. On December 26, 1999, Respondent completed and signed

a Miscellaneous Incident Report, which alleged that a ten-foot

by six-inch aluminum bleacher seat had been stolen from the

southwest stands at the Perrine Khoury League park. According

to the Report, Pedro Barillas reported the theft.

13. This Report was self-generated by Respondent. He

gave the Report to Corporal McReynolds at the end of his shift,

and the Report was assigned to a detective.

14. The bleacher seats at the park are wood, not aluminum.

Further, no seats had been stolen that day, and Pedro Barillas

never spoke with Respondent about any stolen bleachers. The

phone number for Barillas listed by Respondent on the Report is

the number for a fax machine.

15. Computer-generated records and Respondent's own Daily

Activity Report reveal that Respondent spent one hour completing

the one-page Report, during a time when Respondent's squad would

be covering for a different squad during shift change. While

Respondent was completing the Report, he was not available to

respond to other routine calls for service.

16. Sergeant Clark had a conversation after Respondent

retired as to why the problems with Respondent's reports had

occurred. Respondent advised Clark that he did not like working

overtime or getting assigned late calls, so he had written the

reports as he had so he could get off work on time.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. Sections 120.569 and 120.57(1), Florida Statutes.

18. At the beginning of the final hearing, the Commission

dismissed with prejudice Count 2(a) of the Administrative

Complaint, leaving three charges against Respondent. As to

those three charges, the Administrative Complaint alleges that

Respondent did unlawfully and knowingly make a false statement

in writing with the intent to mislead a public servant in the

performance of his official duty, specifically, Sergeant Wayne

Clark on November 27, 1996 (the cigarette theft) and Corporal

George McReynolds on December 10, 1996 (criminal mischief of a

vehicle) and on December 26, 1996 (theft of bleacher seat).

19. Petitioner has met its burden of proving by clear and

convincing evidence that Respondent prepared and submitted to

his supervisors the three subject reports that were false and

that he intended for his supervisors to believe the reports to

be true. The reports were accepted as being accurate and were

assigned to detectives.

20. Respondent argues that he simply made mistakes in

filling out the reports. However, the reports in question do

not simply contain errors; rather, the events reported did not

occur. No cigarettes were stolen from the Mobil or Chevron

stations that day, and neither the person Respondent identified

on his report nor the person Respondent identified during the

final hearing as reporting the theft to him did so. Similarly,

no bleachers were stolen from the park that day, and the person

Respondent identified on his report did not discuss stolen

bleachers with Respondent. Lastly, the report involving

scratched paint on a vehicle, a complaint Respondent alleges

came to him by telephone while he was at the police station,

contains the wrong business name, a wrong license tag number, a

wrong vehicle identification number, and a wrong telephone

number and address for the alleged victim. It is not credible

that a person would call the police station to report damage to

a motor vehicle and give inaccurate information as to every

aspect of the occurrence. There is no evidence that the

vandalism occurred.

21. Section 943.13, Florida Statutes (1995), established

the minimum qualifications for law enforcement officers in

Florida and required in Subsection (7) that they have a good

moral character. Section 943.1395(6), Florida Statutes (1995),

required the Commission to revoke the certification of any

officer who fails to comply with Section 943.13(7).

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

provided at the time that Respondent engaged in the subject

conduct a definition of "good moral character," in part, as

follows:

For the purposes of the Commission's

implementation of any of the penalties

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

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

maintain good moral character, as required

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

* * *

(b) The perpetration by the officer of an

act which would constitute any of the

following misdemeanor or criminal offenses,

whether criminally prosecuted or not:

section . . . 837.06 . . . .

23. Section 837.06, Florida Statutes (1995), provided as

follows:

Whoever knowingly makes a false statement in

writing with the intent to mislead a public

servant in the performance of his official

duty shall be guilty of a misdemeanor of the

second degree, punishable as provided in s.

775.082 or s. 775.083.

24. Section 943.1395(7), Florida Statutes (1995),

authorized the Commission, but did not require it, to impose

penalties if it found that a certified officer had not

maintained good moral character. The Commission has proven that

Respondent did not maintain good moral character, and it is

appropriate that disciplinary action be taken.

25. Rule 11B-27.005(4), Florida Administrative Code

(1995), provided a range of disciplinary guidelines for

certified officers found guilty of violating Section 943.13(7),

Florida Statutes, absent aggravating or mitigating

circumstances. The guidelines were based upon a single

violation, not the three violations proven in this proceeding.

The Rule also provided that each upper range of sanctions

includes all lesser penalties.

26. Rule 11B-27.005(5)(b)4, Florida Administrative Code

(1995), provided that failure to maintain a good moral character

by making false reports, as prohibited by Section 837.06,

Florida Statutes (1995), was punishable by revocation of

certification. Rule 11B-27.005(6), Florida Administrative Code

(1995), contained 22 different circumstances to be considered in

aggravation or mitigation of that penalty. Six of those 22

circumstances suggest a harsh penalty in this case: use of

official authority to facilitate the misconduct, misconduct

while the officer was performing his duties, the severity of the

misconduct, the deterrent effect of the penalty imposed, self-

gain realized by the officer, and multiple counts of violating

Section 943.13(7), Florida Statutes.

27. On the other hand, there is no evidence of any other

misconduct during Respondent's 25-year career as a police

officer, Respondent retired over two years ago, the misconduct

occurred three years ago during a one-month time period, there

was no danger to the public, and no actual damage was caused by

the misconduct. In addition, Sergeant Clark testified that

Respondent is an excellent police officer and that Respondent

had consistently been evaluated as satisfactory or above. There

are, therefore, more mitigating factors present than

aggravating.

28. Because the filing of a false report by a police

officer cannot be condoned, there should be a substantial

penalty imposed, but revocation is too harsh. It is more

appropriate that Respondent's certification as a law enforcement

officer be suspended for a period of two years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent guilty of the remaining allegations in the

Administrative Complaint and suspending Respondent's

certification for a period of two years.

DONE AND ENTERED this 3rd day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 1999.

COPIES FURNISHED:

A. Leon Lowry, II, 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

Karen D. Simmons, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Andrew Axelrad, Esquire

Dade County Police Benevolent Association

10680 Northwest 25th Street

Miami, Florida 33172

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.