STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2248

)

MILTON J. TINIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in this case on November 5, 1986 in Tavares, Florida. A partial transcript was received on May 4, 1987. When it thereafter was determined that a full and complete transcript could not be obtained, an Order was entered on June 24, 1987, allowing the parties fifteen (15) days to submit proposed findings of fact and conclusions of law, after which a Recommended Order would be issued on the existing record. The proposed findings of fact submitted by the Petitioner are accepted, and have been generally incorporated herein.

Nothing has been received from or on behalf of the Respondent.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Milton J. Tinis, pro se

1502 Tyringham Road

Eustis, Florida 32726

By Administrative Complaint dated May 22, 1986, the Petitioner seeks to revoke the Respondent's certification as a law enforcement officer pursuant to Section 943.1395(5), Florida Statutes, for failure of the Respondent to maintain the statutory requirement that a law enforcement officer have good moral character. The Respondent denied the charges and requested a formal administrative hearing.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on October 2, 1981, and was issued certificate number 02- 29012.

   
   

2. On September 7, 1985, the Respondent, who was then employed as a policeman by the town of Mount Dora, arrested Roger Bivins for driving under the influence of alcohol and speeding.

3. Subsequent to arresting Mr. Bivins, the Respondent transported him to the Lake County, Florida, jail for booking.

   
   

4. The Respondent and Mr. Bivins entered the jail booking room at about 4:15 a.m. Sergeant Paul Bass and Officer Edward Johnson, jail correctional officers, were on duty in the booking room at the time.

   
   

5. The Respondent instructed Mr. Bivins to be seated on a bench in the booking room. Mr. Bivins, whose hands were handcuffed behind his back, complied.

   
   

6. The Respondent checked the arrest affidavit and booking sheet which had been prepared in connection with the arrest of Mr. Bivins, and submitted them to Sergeant Bass for approval.

   
   

7. The Respondent then turned his attention to Mr. Bivins who sat on the bench. The Respondent asked Mr. Bivins if "he could have his handcuffs back."

   
   

8. Mr. Bivins answered "no" and added that he intended to have a lawyer "take care of it." Mr. Bivins offered no physical resistance, nor did he physically threaten the Respondent.

   
   

9. The Respondent became angry and shouted at Mr. Bivins. The Respondent said he could "take his gun and badge off."

   
   

10. The Respondent then grabbed Mr. Bivins by the arm, stood him up, and hurled him very hard head-long four to five feet into some steel jail bars. Mr. Bivins, who was still handcuffed with his hands behind him, could not catch himself.

    
    

11. Mr. Bivins struck the bars with the right cheek of his face and then fell backward onto his back, dazed. His face and back were injured as a result.

    
    

12. Sergeant Bass intervened and assisted Mr. Bivins to a nearby desk. Sergeant Bass observed an injury to Mr. Bivins' face and observed "seven or eight welts" on Mr. Bivins' back. Sergeant Bass was concerned about these injuries and contacted the jail nurse, Mary Jo Robbins.

    
    

13. Ms. Robbins, a licensed practical nurse employed by the Lake County Jail, saw Mr. Bivins at about 4:55 a.m.

    
    

14. Ms. Robbins observed the welts on Mr. Bivins' back and hematomas under his right eye. The hematomas appeared "purplish" and swollen to Ms. Robbins who concluded Mr. Bivins had suffered a "pretty hard lick."

    
    

15. Ms. Robbins gave Mr. Bivins Tylenol capsules for his pain, and recommended that he go to the hospital to get an X-ray of his face because the force of the blow suffered by Mr. Bivins could have fractured a facial bone.

    
    

16. Although no bone was broken, Mr. Bivins suffered pain for two to three days thereafter.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

    
    

18. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement officers in Florida, which provide at subsection (7) that an officer shall:

    
    

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

    
    

19. Section 943.1395(5), Florida Statutes, requires the Commission to revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10), Florida Statutes.

    
    

20. The term moral character as applied to an applicant for a beverage license was defined in Zemcour, Inc. v. Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977), as:

    
    

    Moral character . . . 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.

    
    

    In Florida Board of Bar Examiners re: G.W.L., 364 So.2d 454 (Fla. 1978), the Florida Supreme Court stated that a finding of a lack of good moral character in a case involving admission to the bar, "requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others. "

    
    

21. Sections 776.05 and 776.07, Florida Statutes, restrict the degree of force which a law enforcement officer may employ to make an arrest or prevent the escape of an arrested person. The force used must be reasonably believed to be necessary.

    
    

22. In this case, the force used by the Respondent was excessive, unnecessary and unreasonable because Mr. Bivins' hands were handcuffed behind his back, and he was helpless to slow or stop his movement into the steel bars. Such conduct by the Respondent is demonstrative of a contempt or lack of respect for the rights of others that establishes that the Respondent lacks the quality of good moral character required for certification as a law enforcement officer. Lacking the requisite good moral character, the Commission is required to revoke the Respondent's certification, pursuant to Section 943.1395(5), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that certificate number 02-29012 held by the Respondent, Milton

J. Tinis, be revoked.

Hearing Officer WILLIAM B. THOMAS

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987.

COPIES FURNISHED:

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

Mr. Milton J. Tinis 1502 Tyringham Road

Eustis, Florida 32726

Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

Robert R. Dempsey Executive Director

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

Docket for Case No: 86-002248

Orders for Case No: 86-002248