Judges: R. T. CARPENTER
Agency: Department of Law Enforcement
Latest Update: Apr. 24, 1984
Summary: Dismiss complaint which didn't allege facts so that a determination of the statute violated could be made.
83-2184STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS )
AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2184
)
RONALD D. SMITH, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Lakeland, Florida, on December 6, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: Dennis S. Valente, Esquire
Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
For Respondent: No Appearance
This case arose on Petitioner's Administrative Complaint charging that Respondent "committed conduct unfit for an officer," and seeking revocation of his certificate as a law enforcement officer. Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
FINDINGS OF FACT
Respondent holds a certificate as a law enforcement officer, Certificate Number 02-22949. That certificate is currently inactive.
Respondent was employed as a deputy sheriff with the Polk County Sheriff's Department in January of 1978.
Respondent resigned this position on or about October 22, 1982.
On or about September 9, 1982, Respondent was involved in the apprehension and arrest of an individual named James Pitts.
A Winter Haven police officer, Dennis Warren, actually effected the arrest of the above suspect on or about September 9, 1982.
During the arrest, Pitts resisted Officer Warren and in so doing, Officer Warren sustained injuries to his right hand.
The area in which the struggle occurred consisted of loose dirt and gravel.
Immediately after the arrest, Officer Warren's uniform was disheveled, dirty and ripped. The knuckles on his right hand were bleeding.
Immediately after the arrest, Respondent's uniform was clean, not disheveled and no dirt was present.
The dirt and gravel at the scene of the arrest were the type that would adhere to a uniform.
After Officer Warren arrested the suspect, Respondent was unable or unwilling to walk the suspect to the police car.
Another officer (Bill Stone), walked the suspect to the police car and placed the suspect in the vehicle.
Respondent was present during the arrest of James Pitts and observed Officer Warren struggling with said individual.
Officer Warren requested Respondent's assistance in the arrest but Respondent failed to provide such assistance.
During Respondent's tenure as a deputy sheriff, he failed to assist other officers on several occasions during violent confrontations.
CONCLUSIONS OF LAW
Section 943.145(3), Florida Statutes (F.S.), provides in part:
Grounds for revocation or suspension of certification shall consist of:
Failure of the certificate holder to maintain qualifications established in s.
943.13 or specific standards promulgated thereunder as rules.
Falsification or a willful material misrepresentation of information in an employment application to an employing agency.
The commission of conduct by the certificate holder constituting gross in- subordination, gross immorality, habitual drunkenness, willful neglect of duty, incompetence, or gross misconduct which seriously reduces the certificate holder's effectiveness to function as a law enforce- ment officer or a correctional officer.
Respondent was charged broadly with violating Sections 943.13 and 943.145, F.S. A review of these provisions indicates that Respondent should have been and was intended to be charged specifically under Subsection 943.145(3)(c), F.S., above. The Administrative Complaint is further deficient in that it fails to charge Respondent with any violation of these statutory provisions. The stated basis for disciplinary action is only that "he committed
conduct unfit for an officer" (Administrative Complaint, Count 4), which is nowhere condemned in these provisions.
The evidence did establish that Respondent evaded his duty in failing to assist in the Pitts arrest. The charge of committing "conduct unfit for an officer" is not, however, equivalent to any statutory term which provides a basis for disciplinary action, i.e., the Administrative Complaint does not allege gross misconduct or willful neglect of duty (emphasis added). The charge pertaining to the Pitts arrest must therefore be dismissed. 1/
The Administrative Complaint further alleges that "on or about October 22, 1982, Respondent was charged with refusing to fulfill his duties as a deputy sheriff." (Count 3) This charge fails to allege facts which, if proven, would constitute a violation of any statutory provision, and must likewise be dismissed.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Petitioner enter a Final Order dismissing the Administrative Complaint.
DONE and ORDERED this 18th day of January, 1984, in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984.
ENDNOTE
1/ "Where statutes provide grounds for revocation of licenses, those provisions must be strictly construed and strictly followed because the statute is penal in nature." Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979)
COPIES FURNISHED:
Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Ronald D. Smith
651 Ave., H., Northwest Winter Haven, Florida 33880
Robert R. Dempsey, Executive Director Department of Law Enforcement
Post Office Box 1489 Tallahassee, Florida 32302
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
Petitioner,
vs. DLE CASE NO. 530000-0779
DOAH CASE NO. 83-2184
RONALD D. SMITH,
Certificate No.: 02-22949,
Respondent.
/
ORDER
This matter came on for final action by the Criminal Justice Standards and Training Commission pursuant to Section 120.57(1)(b)9, F.S., at a public meeting on March 22, 1984, in Tallahassee, Florida, for consideration of the recommended order of the hearing officer and the exceptions filed thereto. A transcript of the proceedings is available, if necessary.
FINDINGS OF FACT
The Commission, having reviewed the Findings of Fact, adopts and incorporates by reference the Findings ,of Fact of the hearing officer.
CONCLUSIONS OF LAW
The hearing officer erred in dismissing Petitioner's Complaint on the basis of the conclusions of law recited in the Recommended Order,
The Complaint was not deficient but gave Respondent timely, adequate and fair notice of the charges against him under the applicable due process standards of administrative license forfeiture proceedings.
Pleadings in an administrative adjudication are not required to conform to the technical niceties of a criminal information or 19th century code pleading, but should apprise a person of average intelligence of the charges against him and the facts and law relied on to support such charges.
The instant Complaint set forth fully the acts of Respondent which gave rise to the charges against him and cited the statutory section which condemns such acts, i.e., gross misconduct or willful neglect of duty, and makes them a predicate for decertification.
Under the circumstances, in the absence of any objection or protest from Respondent, the arguable failure of the Complaint to (track) the exact language of Section 943.145(3)(c), Florida Statutes, cannot be deemed to have misled Respondent or embarrassed him in the preparation of his defense.
Moreover, by the controlling weight of precedent, Respondent has waived any claim of lack of specificity in the Complaint by failing to seek particularization of the charges prior to the hearing.
The Hearing Officer has furnished no legal authority for his ruling that the Complaint is defective. The only authority cited refers to strict construction of statutes that work a license forfeiture and it cannot be strictly construed in this case given the Hearing Officer's Findings of Fact.
The Respondent was obligated to assist other officers in apprehending violent suspects and his failure to do so constitutes willful neglect of duty and gross misconduct which seriously reduces the certificate holder's effectiveness to function as a law enforcement officer. Pursuant to 943.145(3)(c), F.S., there are grounds to revoke or suspend the certification of Respodent. IT IS THEREFORE:
ORDERED AND ADJUDGED that the certification of Ronald D. Smith shall be and hereby is REVOKED.
This Order shall take effect on the date of filing. DONE AND ORDERED this 20 day of April, 1984.
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
MICHAEL A. BERG
COPIES FURNISHED:
All Counsel of Record Ronald D. Smith
Docket for Case No: 83-002184
Orders for Case No: 83-002184
| Issue Date |
Document |
Summary |
|
Apr. 20, 1984 |
Agency Final Order
|
|
|
Jan. 18, 1984 |
Recommended Order
|
Dismiss complaint which didn't allege facts so that a determination of the statute violated could be made.
|
