Judges: K. N. AYERS
Agency: Department of Law Enforcement
Latest Update: May 30, 1989
Summary: Stupidity not equivalent to bad moral character.
89-0514STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0514
)
JAMES DeFALCO, )
)
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 April 13, 1989, at Tampa, Florida.
APPEARANCES
For Petitioner: Joseph S. White, Esquire
P. O. Box 1489 Tallahassee, Florida 32302
For Respondent: James DeFalco, pro se
1021 Spruce Drive
Belleair Beach, Florida 34635
By Administrative Complaint dated March 31, 1988, the Criminal Justice Standards and Training Commission (CJSTC), Petitioner, seeks to revoke the certification of James DeFalco, Respondent, as a law enforcement officer. As grounds therefor it is alleged that on March 29, 1987, Respondent did unlawfully loiter or prowl in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant a reasonable alarm or immediate concern for the safety of persons or property in the vicinity. Specifically, Respondent placed himself in the apparent role of a "peeping tom." This conduct is alleged to violate Section 943.1395(5), Florida Statutes, in that he failed to maintain a good moral character as required by Section 943.13(7), Florida Statutes.
At the hearing, Petitioner called two witnesses, Respondent called three witnesses comprising himself, his wife and father-in-law, and two exhibits were admitted into evidence.
There is no dispute regarding the facts involved in these proceedings.
Accordingly, proposed findings submitted by Petitioner are accepted even though not fully incorporated herein.
FINDINGS OF FACT
At all times relevant hereto, Respondent was certified as a law enforcement officer by the CJSTC. On March 29, 1987, He was employed by the City of Clearwater in the uniform patrol division.
Respondent graduated from the police academy in 1985, and served one and one-half years with the Belleair Police Department before being hired by the Clearwater Police Department.
On the morning of March 29, 1987, while on patrol in a City of Clearwater police car, Respondent drove into the driveway of Lisa Scholl, a young woman occupying that residence. Ms. Scholl heard the engine of a car running in her driveway and came out of the house to inquire why the police car was there.
At about the same time, Respondent received a call to investigate a complaint. He told Ms. Scholl he had stopped because her front door was open and that he had to leave to answer the call received on his radio.
As a matter of fact, Respondent, who was having marital problems at the time, was intending to ask Ms. Scholl for a date. Respondent had never met Ms. Scholl but had accompanied another police officer to Ms. Scholl's residence some months earlier and was aware of who she was and where she lived. Ms. Scholl surmised Respondent intended to ask her for a date before he received the call on his radio and departed.
Shortly thereafter it started raining rather hard. Ms. Scholl glimpsed a man in a yellow slicker crossing the woods alongside her house and became concerned that some criminal activity was happening in her vicinity. She then walked into her bathroom where she saw the face of a man peering through the jaloused window of her bathroom. She screamed, and the man wearing a yellow raincoat ran through the woods toward a police car parked down from her house. Ms. Scholl then called her cousin to come over to her house and she called the police who sent an officer to investigate.
During the course of the investigation, Ms. Scholl identified Respondent as the individual she initially spoke to while parked in her driveway and the man she observed peering through her bathroom window.
When questioned, Respondent ultimately admitted that he had looked through the window to Ms. Scholl's bathroom but did so only for the purpose of seeing if there was another person in the house. Respondent acknowledged that he had done a stupid thing in looking through a window into Ms. Scholl's home, but contended that no immoral conduct was intended by this act and that his sole purpose was to attempt to learn if some other man was in the house with Ms. Scholl.
Respondent's denial of any attempt at voyeurism is supported by Exhibit 2, a psychological evaluation of Respondent. This evaluation found Respondent to be psychologically competent in all respects; a conscientious, hard working individual with a high sense of responsibility and loyalty; with none of the criteria for voyeurism; and highly unlikely to be involved in similar situations in the future.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 943.13, Florida Statutes, establishes the minimum qualities of character expected of law enforcement officers in Florida. Subsection (7) thereof provides:
Have a good moral character as determined by a background investigation under procedures established, by the Commission.
In his initial certification Respondent ostensibly met this criterion.
Section 943.1395(5), Florida Statutes, provides in pertinent part:
The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(1)-(10).
This provision constitutes authority for the commission to revoke the certification of a law enforcement officer who is not of good moral character.
In a license revocation proceeding the agency has the burden of proving the charges by clear and convincing evidence. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
Moral character has been defined by the court in Zeymour, Inc. vs. State of Florida, Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) as:
Moral character as used in the 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 populous for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character.
In the instant case, the facts are undisputed. A police officer, in peering through the window of an occupied residence to observe events ongoing in the residence not related to law enforcement commits, at best, a stupid act. If the peering was for an immoral purpose, such as to watch a woman disrobe, a breach of good morals is evident. The fact that Respondent was not engaging in voyeurism in peering through the window does not mitigate the stupidity of the act but does mitigate in a finding respecting good moral character. As noted in Zeymour, supra, a single act does not necessarily indicate bad moral character.
From a totality of the evidence presented including Respondent's full acknowledgment of the seriousness of the error committed by him, the full support of his family in these proceedings, and the expert testimony that Respondent is a morally responsible person, it is concluded that the Petitioner has failed to prove by clear and convincing evidence that James DeFalco is not of good moral character and that his certification as a law enforcement officer should be disciplined. It is
RECOMMENDED that the charges that James DeFalco failed to maintain good moral character be dismissed.
DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida.
K.N. AYERS Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989.
COPIES FURNISHED:
Joseph S. White, Esquire Florida Department of Law Enforcement
P.O. Box 1489 Tallahassee, FL 32302
James DeFalco 1021 Spruce Drive
Belair Beach, FL 34635
Jeffrey Long, Director Criminal Justice Standards and Training Commission
P.O. Box 1489 Tallahassee, FL 32302
Daryl McLaughlin Executive Director Florida Department of Law Enforcement
P.O. Box 1489 Tallahassee, FL 32302
Docket for Case No: 89-000514
Orders for Case No: 89-000514
