STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2223

)

BENNY R. HARDY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on November 15, 1983, in Tavares, Florida.

APPEARANCES

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 an Administrative Complaint filed by Petitioner, whereby it seeks to revoke or suspend the Respondent's Law Enforcement Officer's Certificate on the ground that the Respondent was charged with a felony involving obtaining drugs with a forged prescription, to which he allegedly pleaded nolo contendere and was placed on probation with adjudication of guilt withheld. Accordingly, pursuant to the provisions of Sections 943.13 and 943.145, Florida Statutes, the Petitioner is not qualified to hold a Law Enforcement Officer's Certificate since he has allegedly committed conduct unfit for an officer.

The Petitioner, at the hearing, presented two witnesses, Welton Cadwell, Sr., the City Clerk of the City of Umatilla and Karl Kaluhiokalani, program coordinator for the De-certification Section of the Department of Law Enforcement. Petitioner offered Petitioner's Exhibit 1, a certified copy of a judgment by the Circuit Court of Lake County, Florida, placing the Respondent on probation and withholding adjudication of guilt. Petitioner's Exhibit 1 was admitted.

The issue to be resolved concerns whether Respondent committed conduct rendering him unfit to hold a Law Enforcement Officer's Certificate and, if so, what penalty should be imposed against his licensure status, if any.

At the conclusion of the hearing, the Petitioner waived the right to submit proposed findings of fact and conclusions of law and elected not to order a transcript.

FINDINGS OF FACT

1. The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers.

   
   

2. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983.

   
   

3. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated.

   
   

4. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

6. Section 943.145(3)(a), Florida Statutes, provides pertinently as follows:

   
   

   1. Grounds for revocation or suspension of certification shall consist of:

      1. Failure of the certificate holder to maintain qualifications established in s.

         943.13 or specific standards promulgated thereunder as rules.

         
         

7. Section 943.13(4), Florida Statutes, provides pertinently as follows:

   
   

   (4) Not have been convicted of a felony

   or of a misdemeanor involving "moral turpitude" as the term is defined by law nor have been released or discharged under any other than honorable conditions from any of the Armed

   Forces of the United States. For the pur- poses of this section and s. 943.145, any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty

   of a felony or of a misdemeanor involving moral turpitude shall not be eligible for employment as a law enforcement officer, notwithstanding suspension of sentence

   or withholding of adjudication. For the purposes of this section and s. 943.145, any person who, after July 1, 1981, pleads guilty or nolo contendere to or is found guilty of a felony or of a misdemeanor involving moral turpitude shall not be eligible for employment as a correctional officer, notwithstanding suspension of sentence or withholding of adjudication.

   
   

8. In view of the above Findings of Fact and the evidence of record, it is obvious that the Respondent has committed acts or conduct rendering him unfit for employment as a law enforcement officer and thus he has failed to maintain his qualifications established in Section 943.13. He is thus unfit to retain licensure as a law enforcement officer. The uncontroverted evidence in the record, the Findings of Fact, and the above-cited authority, having clearly established that he is no longer qualified to hold a certificate as a law enforcement officer in the State of Florida, his presently inactive certificate should be revoked.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore

RECOMMENDED:

That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent.

DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF 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 13th day of December, 1983.

COPIES FURNISHED:

Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Mr. Benny R. Hardy Post Office Box 1014

Umatilla, Florida 32784

James W. York, Executive Director Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

G. Patrick Gallagher, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 83-002223

Orders for Case No: 83-002223