STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, ) DEPARTMENT OF LAW ENFORCEMENT, )

)

Petitioner, )

)

vs. ) Case No. 85-2675

)

MICHAEL A. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on December 5, 1985, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Michael A. Brown, pro se

3118 East Ida

Tampa, Florida 33610

By Administrative Complaint dated June 18, 1985, the Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke the certificate of Michael A. Brown as a law enforcement officer. As grounds therefor it is alleged that on or about October 24, 1983, Respondent assaulted Stephanie Brown with a deadly weapon, to wit: a pistol firearm; and, on or about December 20, 1983, assaulted Stephanie Brown with a deadly weapon, to wit: a letter opener. It is alleged these acts show that Respondent has failed to maintain the required qualifications of a law enforcement officer, one of which is to have a good moral character.

At the hearing Petitioner called two witnesses, Respondent stipulated that he was certified as alleged, and no

evidence was submitted.

Proposed findings have been submitted by Petitioner. Treatment accorded these proposed findings is contained in Appendix A, which is attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department.

   
   

2. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued.

   
   

3. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints.

   
   

4. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset.

   
   

5. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw

   his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence.

   
   

6. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.

   
   

8. Respondent is here charged with violating Sections 943.1395(5) and 943.13(7), Florida Statutes (1984 Supp.). The former provides:

   
   

   The Commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10) and shall by rule, adopt revocation-of-certification procedures pursuant to Chapter 120. For the purpose of revocation, the chairman of the commission shall appoint one or more panels of three commissioners each to determine probable cause.

   
   

9. Section 943.13(1984 Supp.) establishes qualifications for certification of law enforcement and correctional officers. Subsection (7) thereof provides:

   
   

   Have a good moral character as determined by a background investigation under procedures established by the commission.

   
   

10. It is noted that Section 943.1395, Florida Statutes, became effective October 1, 1984. Prior thereto, grounds for revocation or suspension of certificates or certification were contained in Section 943.145, Florida Statutes (1983). Subparagraph (3)(a) thereof provides:

    
    

    Failure of the certificate holder to maintain qualifications established in s. 943.13 or specific standards promulgated thereunder as

    rules.

    
    

11. Section 943.13(7), Florida Statutes (1983), was not changed in the 1984 revision of Chapter 943.

    
    

12. The 1983 statutory provisions, which were in effect a the time the conduct occurred which forms the basis for this complaint, are identical to these provisions as re-enacted effective October 1, 1984. Accordingly, charging Respondent with violating the provisions of Section 943.1395 instead of Section

    943.145 is a harmless error.

    
    

13. The burden is on Petitioner to prove the allegations contained in the Administrative Complaint. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). While the standard of evidence to be used in this type case is not finitely established, where revocation of a license is involved the evidence required is more than a preponderance. As noted in Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981):

    
    

    [W]hen the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as "substantial" as the consequences.

    
    

14. Clear and convincing evidence is the standard of proof for license revocation.

    
    

15. Assault with a deadly weapon is a crime involving moral turpitude. Proof that a law enforcement officer committed such a crime is clear and convincing evidence that the law enforcement officer has failed to maintain a good moral character as required by Section 943.13(7), Florida Statutes.

    
    

16. In the instant case no credible evidence was presented to support the charge that Respondent assaulted Stephanie Brown with a pistol. Stephanie never saw Respondent's pistol even in its holster, let alone in his hand; and she is the only witness to the incident who testified in these proceedings.

    
    

17. With respect to the charge of assault with the letter opener Stephanie, again the only witness who testified, testified that when she and Respondent started arguing the letter opener was on her desk; when Respondent tilted the desk toward her the letter opener slid off the desk and fell on her: and Respondent then picked it up and held it in his hand while the argument continued. Although Stephanie testified that Respondent was close enough to her to strike her with the letter opener and she

    was afraid because Respondent was angry, no evidence was presented that Respondent ever threatened to stab or cut Stephanie Brown with a letter opener, or that he had ever struck her in the past.

    
    

18. Assault is defined as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. Fla. Jur. 2d Crim. Law Section 1009.

19. An essential element of criminal assault is the creation of a "well founded fear" of violence or imminent peril on the part of the witness. Id. Absent some evidence of past conduct on the part of Respondent on which he harmed Stephanie or attempted to harm her, the fact that he held the letter opener in his hand and was close enough to strike Stephanie with this weapon if he so desired, does not constitute an assault.

    
    

20. From the foregoing it is concluded that Petitioner has failed to prove by clear and convincing evidence that Respondent's actions with the letter opener during his argument with his wife created a well-founded fear in the wife that he would strike her with the letter opener. Accordingly, no assault was committed. It is further concluded that Petitioner failed to prove, by any standard of evidence, that Respondent assaulted his wife with a gun. It is

RECOMMENDED that all charges against Michael A. Brown be dismissed.

DONE AND ENTERED this 16th day of January, 1986, at Tallahassee, Florida.

K. N. AYERS, 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 15th day of January, 1986.

APPENDIX

Petitioner's Proposed Findings of Fact

1. Contained in the preamble of the Hearing Officer's Recommended Order.

2. Accepted in Hearing Officer Finding of Fact no. 1.

3. True, but immaterial.

4. Contained in Hearing Officer Finding of Fact No. 2

5. Contained in Hearing Officer Finding of Fact No. 2.

6. Contained in Hearing Officer Finding of Fact no. 3.

7. Contained in Hearing Officer Finding of Fact No. 3.

8. Contained in Hearing Officer Finding of Fact No. 3

9. Contained in Hearing Officer Finding of Fact No. 4.

10. Contained in Hearing Officer Finding of Fact No. 4.

11. Rejected as not supported by credible evidence.

12. Rejected as not supported by credible evidence.

13. Included in Hearing Officer Finding of Fact No. 4.

14. Included in Hearing Officer Finding of Fact No. 6.

15. Included in Hearing Officer Finding of Fact No. 6.

COPIES FURNISHED:

Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael A. Brown 3118 East Ida

Tampa, Florida 33610

Robert R. Dempsey, Executive Director Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Daryl G. McLaughlin, Director Division of Criminal Justice

Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs. DOAH Case No.: 85-2675

CJSTC Case No.: 2900200-1445

MICHAEL A. BROWN,

Certificate Number: 02-026390

Respondent.

/

FINAL ORDER

The above-styled matter came on for final action by the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a public meeting on April 24, 1986, in Tallahassee, Florida, upon consideration of the Recommended Order of the hearing officer entered herein. A transcript of the proceeding is available, if necessary. Respondent was not present.

FINDINGS OF FACT

The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the Findings of Fact of the Hearing Officer. The exceptions to the Hearing Officer's findings filed by the Petitioner are dismissed as unsupported by the record.

CONCLUSION OF LAW

Having reviewed the Recommended conclusions of law and the exceptions filed thereto, the Commission adopts the Hearing Officer's conclusions of law which are attached hereto and incorporated by reference except as to the Hearing Officer's Conclusion that in order to have an assault evidence of past action must be presented. There can be no doubt that in order to be guilty of assault one must place a fear of immediate harm in an individual by way of threat and appear to possess a means by which to carry out said threat. To this end the petitioner's exception filed regarding the above referenced conclusion is adopted. All other exceptions filed by the Petitioner are dismissed as unsupported by the record.

IT IS THEREFORE ORDERED AND ADJUDGED: this case is DISMISSED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of

appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.

DONE AND ORDERED this 22 day of July, 1986.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

WALTER C. HEINRICH, Sheriff

Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to MICHAEL A. BROWN, 3118 East Ida, Tampa, Florida 33610, by U.S. Mail on or before 5:00 p.m., this 22 day of July, 1986.

cc: All Counsel of Record

Docket for Case No: 85-002675

Orders for Case No: 85-002675