STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-2810

)

EDWARD A. FOY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer in Sarasota, Florida on July 30, 1986. The appearances were as follows:

APPEARANCES

For Petitioner: Joseph S, White, Esquire

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

For Respondent: Edward A. Foy, Pro Se

2910 Wood Street

Sarasota, Florida 33577

This cause arose upon an Administrative Complaint filed by the Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, whereby it seeks to revoke the law enforcement officer certification of the Respondent, Edward A. Foy. The Complaint alleges that the Respondent failed to maintain the qualifications provided under Section 943.1395(5) and Section 943.13(7), Florida Statutes, which require an officer to have good moral character as a condition for licensure and continued licensure.

The cause came on for hearing as noticed, at which the Petitioner presented three witness and one exhibit, which was admitted into evidence. The Respondent presented his own testimony and presented one exhibit, which was admitted into evidence. At the conclusion of the proceeding a transcript was ordered and duly submitted, and the parties availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law. Only the Petitioner filed such a post-hearing pleading. Those Proposed Findings of Fact have been treated and dealt with herein and additionally have been specifically ruled on in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved concerns whether the Respondent has been guilty of conduct evincing a lack of "good moral character" and, if such is proven, what, if any, penalty is warranted.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on March 19, 1982, and was issued certificate number 99-4437. The Petitioner is an agency of the State of Florida charged with enforcing the standards for law enforcement officer certification contained in Chapter 943, Florida Statutes, and related rules. It has concomitant authority to discipline such law enforcement officers as to their certification status if certain violations of the provisions in that Chapter are established.

   
   

2. On October 25, 1980, the Respondent was cited by a law enforcement officer in Hillsborough County, Florida, for speeding. The fine and disposition of the case remained outstanding regarding that citation until September 27, 1984. In 1981 the Respondent moved to Florida from Ohio to accept employment with the Sarasota County Sheriff's Department. Soon after relocating in Florida, the Respondent attempted to obtain a Florida driver's license. A representative of the Department of Highway Safety and Motor Vehicles informed him that he was "under suspension." Some months prior to June 1984, one of the Respondent's supervisors at the Sarasota County Sheriff's Department, Captain Johnson, informed the Respondent that his driving privilege in Florida was under suspension. He was instructed to get the matter "squared away."

   
   

3. On June 30, 1984, the Respondent was involved in an automobile accident. The accident was investigated by Trooper Linda Perkins of the Florida Highway Patrol. During the course

   of the accident investigation, Trooper Perkins asked the Respondent for his driver's license. The Respondent furnished Trooper Perkins a piece of paper which had written on it the letter "F" followed by nine digits. The Respondent represented this number to the Trooper to be his Florida driver's license number. The structure and sequencing of the number was inconsistent with Florida driver's license numbers as well as those issued by the State of Ohio. The Respondent at the time possessed a valid Ohio driver's license. The Respondent, however, had no valid Florida driver's license on the date of the accident and was aware that his privilege to drive was under suspension in Florida on the date of the accident.

   
   

4. On September 15, 1984, Sergeant Gerald Poole, Lieutenant Blakely, and Sergeant Kremm, each employed by the Sarasota County Sheriff's Department, met with the Respondent. The Respondent acknowledged that Captain Johnson had earlier notified him that he was aware of the license suspension in Florida and was requested to explain why the suspension had not been corrected, but remained outstanding. The Respondent informed his superiors that an "imposter" had obtained a California driver's license in his name, (after allegedly stealing his wallet), and had impersonated him when ticketed in Hillsborough County in 1980 for speeding. Respondent maintained at this meeting that he had a valid Florida driver's license, which was not the case.

   
   

5. The Respondent was confronted with the fact that the "imposter's" ticket contained the address of 58 Brittany Drive, Cincinnati, Ohio. The Respondent denied that that address existed. The Respondent's employment application, which was on file at the Sarasota County Sheriff's Department, contained as the Respondent's prior address, 58 Brittany Drive, Fairfield, Ohio. The Respondent's employment application also listed Pomona, California, as a prior address. The Respondent had spent a short period of time in California shortly prior to his leaving his employment as a police officer in Ohio, at which time he apparently obtained a California driver's license. He elected not to remain in California, however, returned to Ohio and shortly thereafter moved to Sarasota County.

   
   

6. In any event, Sergeant Poole obtained a computer check of the registrant of the tag number listed on the "imposter's" 1980 Hillsborough County traffic ticket. The car's license plate was registered in the name of Edward Foy.

   
   

7. On September 27, 1984, the Respondent met with

   Lieutenant Vernie Skeens of the Sarasota County Sheriff's Department. Lieutenant Skeens had been assigned to conduct an "internal affairs" investigation regarding allegations that the Respondent gave false information to his superiors, had driven Department vehicles while unlicensed, and had driven under suspended driving privileges. The Respondent presented Lieutenant Skeens with a valid Florida driver's license which bore an issue date of the same day, September 27, 1984.

   Lieutenant Skeens questioned the Respondent regarding the unpaid 1980 speeding ticket which had caused his privilege to drive in Florida to become suspended. The Respondent repeated his explanation that an imposter was responsible for using his name in conjunction with the citation and that is why suspension had been entered against his name in the Florida driving records.

   The Respondent later that day admitted that it was he and not an imposter who received the 1980 ticket in Hillsborough County.

   When asked if he had lied to his superiors concerning this, the Respondent replied, "I believe I may have. I don't think I was..." The Respondent admitted that he had not obtained a Florida driver's license since moving to Florida until September 27, 1984, the day of his interview with Lieutenant Skeens. He also told Lieutenant Skeens that, at the scene of the June 30, 1984 traffic accident, he gave no driver's license number to Trooper Perkins and had no idea how she came to obtain such a number.

   
   

8. The Respondent testified at the formal hearing, however, that he did give Trooper Perkins a driver's license number on the date of the June 30, 1984 accident, at the scene. He testified he believed the number to be that of his Ohio driver's license. Although the Respondent maintained he told Trooper Perkins he did not have a Florida driver's license, her testimony is accepted over his as more credible and worthy of belief. Her testimony establishes that, indeed, he represented the number he gave Trooper Perkins to be that of his Florida driver's license. He never told the Trooper that the number was an Ohio driver's license number or that of any other state. Indeed it has not been established that it was other than a bogus driver's license number and it was not proven that the number was that of his Ohio driver's license. The Respondent's own testimony establishes that the number Trooper Perkins was given does not have the same number of digits as the Ohio driver's license. The Respondent was confronted at the hearing with his prior statement in which he denied ever giving the Trooper any number. He testified "...I can't believe I said that." Trooper Perkins' testimony refutes that of the Respondent to the extent that he contended he told the Trooper

   he did not have a Florida driver's license. Indeed he never represented that the number he gave the Trooper was anything other than a Florida driver's license number.

   
   

9. The Respondent has never before been subjected to disciplinary action regarding his licensure status in Florida or Ohio. He has had an exemplary record as a law enforcement officer, earning numerous awards including that of "Officer of the Year" in Ohio in 1982.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 943.13 establishes the minimum qualifications for law enforcement officers in Florida, which included Subsection (7):

    
    

    "...have a good moral character as determined by a background investigation under procedures established by the Commission."

    
    

    Section 943.1395(5) requires:

    
    

    "The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1) through (10)..."

    
    

    In Zemour, Inc. vs. Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977), an application for a beverage license was denied after an administrative finding that the owner was not of good moral character. Although the facts leading to the conclusion in that case are dissimilar to the instant one, the definition of moral character is germane. In that case the Court stated:

    
    

    "Moral character as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence."

    
    

    Section 322.04(1)(c), Florida Statutes, permits a non-resident to operate a motor vehicle in Florida if licensed by another state. However, the privilege pursuant to the foreign driver's

    license expires after the driver has spent six months as a Florida resident, in accordance with Section 322.03 and Section 322.01(17), Florida Statutes. Section 322.245 provides for the suspension of a driver's license upon its holder's failure to appear or otherwise comply with the Court's directive regarding a traffic citation. Section 322.23(1) extends this provision to apply to those who are not licensed Florida drivers but who operate vehicles in the state. Section 322.30 provides that a person licensed by another state whose privilege to drive in Florida is suspended shall not operate a vehicle under his foreign license. Section 322.34(1) provides that driving while one's privilege is suspended is a criminal offense.

    Additionally, Section 316.067 renders the giving of a false report at the scene of an automobile accident to be a criminal offense.

    
    

11. The Respondent's failure to pay his 1980 traffic ticket resulted in his privilege to drive being suspended. This rendered his operation of a motor vehicle subsequent to the suspension a criminal offense, notwithstanding his valid Ohio driver's license. Respondent was aware of the suspension for approximately three years but did not rectify the blemish on his record until after he was involved in an auto accident in June of 1984, in a Department vehicle. The Respondent then gave the Highway Patrol Trooper investigating the accident a bogus Florida driver's license number, apparently in the hope his suspension would not come to light. In fact, the Respondent's Florida licensure did not exist at that point. The Respondent was aware at the time of the accident that his superiors were already aware of the accident and knew that they had told him previously to obtain a Florida driver's license. Had he given the trooper his Ohio license, his failure to comply with his orders to obtain a Florida license would have been disclosed.

    It is thus obvious that he intended to mislead the Trooper into thinking that the number given was for his Florida licensure.

    
    

12. The Respondent compounded his misconduct by composing a falsehood whereby he told his superiors about the phantom "imposter" who ignored a 1980 speeding ticket after claiming to be Edward Foy and that he came to possess a California license appearing to be that of Edward Foy's because Foy had his identification stolen before moving to Florida. The Respondent further deceived his superiors by denying to them that he had furnished any driver's license number at all to Trooper Perkins after the June 1984 accident and by feigning puzzlement as to where she could obtain such a number. He maintained this version of the story when his superiors confronted him with the

    fact that he had had no Florida driver's license in June 1984. In summary, the Respondent showed himself during the events in question to be dishonest, evasive, and indeed contradicted himself on these essential issues.

    
    

13. The position of a law enforcement officer is one of great public trust. The public imposes great confidence in the police founded on the expectation that law enforcement officers will display honesty and integrity in the performance of their duties and in their personal lives. This record establishes that the Respondent, in the circumstances in question, had indeed been quite dishonest on a repeated basis. The original indiscretion was essentially trivial and could have been rectified routinely had the Respondent disclosed it to his superiors and obtained Florida licensure. Honest admission of his mistake would have preserved his previously outstanding law enforcement record intact. Sadly, however, the Respondent chose to be dishonest in dealing with this originally slight transgression and, doubtless out of an excess of pride, layered deception upon deception in an attempt to avoid even disclosure of his mistake. This is quite unfortunate inasmuch as this officer has obviously a high level of skill as a law enforcement officer and even was chosen Law Enforcement Officer of the Year in Ohio in 1982 and had previously earned numerous other commendations in the course of his duties in the Cincinnati, Ohio area. The record in this case, however, establishes that the Respondent, in the course of the events in question, lacked the "quality generally acceptable to the populace for positions of trust and confidence." Zemour, supra. See also Weinstak vs. Immigration and Naturalization Service, 576 Fed 2d 374 (9 Cir 1978).

RECOMMENDATION

Accordingly, the Respondent's certification as a law enforcement officer should be revoked on account of his failure to maintain good moral character as a necessary prerequisite to continued certification.

DONE AND ORDERED this 14th day of November, 1986 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 14th day of November, 1986.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302

Edward A. Foy 2910 Wood Street

Sarasota, Florida 33577

Robert R. Dempsey Executive Director

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

Janet E. Ferris, Esquire General Counsel

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

Rod Caswell

Criminal Justice Standards and Training Commission

Post Office Box 1489 Tallahassee, Florida 32302

APPENDIX

Paragraphs 1-15: Accepted.

Docket for Case No: 85-002810

Orders for Case No: 85-002810