STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0714

)

JOSEPH T. DANIELS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 30, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: James C. Casey, Esquire

10680 N.W. 25th Street, Suite 100

Miami, Florida 33172 STATEMENT OF THE ISSUES

Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character.

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Administrative Complaint on March 31, 1989, seeking to revoke the law enforcement officer certification that had been previously issued to Respondent, Joseph T. Daniels. The Administrative Complaint alleges that the Respondent had failed to maintain the qualification of good moral character. By his Election of Rights form, Respondent denied that he failed to maintain good moral character and timely requested a formal hearing of the Administrative Complaint. The formal hearing was held June 30, 1989, in Fort Lauderdale, Florida.

Prior to the beginning of the hearing, Petitioner moved on the record to amend the date of April 13, 1986, as found in Paragraph 2(a) of the Administrative Complaint, to reflect the correct date of April 3, 1986. This motion was granted without objection from Respondent.

At the final hearing, Petitioner presented the testimony of four witnesses and introduced two documentary exhibits. Respondent testified on his own behalf, presented the testimony of seven other witnesses, and introduced one composite exhibit. All exhibits offered by the parties were accepted into evidence.

A transcript of the proceeding has been filed. At the request of the parties, the deadline for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code.

The proposed findings of fact contained in the parties' post-hearing submissions are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner.

   
   

2. On September 10, 1984, the following occurred in Delray Beach, Florida:

   
   

   1. At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on.

   2. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini.

   3. Respondent was very intoxicated.

   4. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer.

   5. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him.

   6. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent.

   7. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers

      to leave him alone.

   8. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps.

   9. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody.

      Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani.

      
      

3. Respondent met with the officers about two months later and apologized for his actions.

   
   

4. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin.

   
   

5. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence.

   
   

6. On April 3, 1986, the following occurred in Deerfield Beach, Florida:

   
   

   1. At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on.

   2. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so.

   3. Respondent was very intoxicated.

   4. As a result of his intoxication, Respondent was groggy and unable to maintain his balance.

      His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area.

   5. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet,

      the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels,

      who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene.

   6. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent.

      His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area.

   7. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured.

   8. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody.

   9. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to

      manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers.

   10. There was no evidence as to the disposition

       of the charges of disorderly intoxication and battery.

       
       

7. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program.

   
   

8. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions.

   
   

9. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous.

   
   

10. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism.

    
    

11. Respondent currently operates his own business as a private investigator.

    
    

    CONCLUSIONS OF LAW

    
    

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

13. Section 943.13(7), Florida Statutes, requires that a law enforcement officer possess good moral character:

    
    

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

    
    

14. It is Petitioner's burden to prove by clear and convincing evidence that Respondent has failed to maintain good moral character. Ferris v. Turlington, 510 So.2d, 292 (Fla. 1987)

    
    

15. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105, (Fla. 1st DCA 1977), the court discussed the meaning of moral character as follows:

    
    

    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.

    
    

16. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458, (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

17. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of disciplinary proceedings involving Florida law enforcement officers. The rule states, in pertinent part, as follows:

    
    

    1. For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(5)or(6), a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:

       1. The perpetration of an act which would constitute any felony offense, whether criminally prosecuted or not, or

       2. The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

          Sections ... 784.03, ... F.S., or

       3. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness or respect for the rights of others or for the laws of the state and nation, irrespective of whether such act or conduct constitutes a crime, ...

    
    

18. Section 784.03, Florida Statutes is as follows:

    
    

    1. A person commits battery if he:

       1. Actually and intentionally touches or strikes another person against the will of the other; or

       2. Intentionally causes bodily harm to an individual.

    2. Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 755.084.

    
    

19. Section 787.07, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ... while the officer ... is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:

    * * *

    (b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

    
    

20. Petitioner established by clear and convincing evidence that Respondent committed battery against Jesus Lleo, a misdemeanor offense, on February 22, 1985. Petitioner also established by clear and convincing evidence that Petitioner committed battery upon law enforcement officer Dale Davis on April 3, 1986, in Deerfield Beach, Florida, while Officer Davis was engaged in the lawful performance of his duties, a felony offense. These offenses evidence Respondent's failure to maintain good moral character pursuant to Rule 11B- 27.0011(4), Florida Administrative Code.

    
    

21. Petitioner did not establish that Respondent committed a battery offense on September 10, 1984, because Respondent was too intoxicated to form the requisite intent.

    
    

22. Petitioner established by clear and convincing evidence that Respondent engaged in disruptive, disorderly behavior while in an intoxicated condition in Delray Beach, Florida, on September 10, 1984. This conduct evidences Respondent's failure to maintain good moral character pursuant to Rule 11B-27.0011(4)(c), Florida Administrative Code.

23. Petitioner established by clear and convincing evidence that Respondent engaged in disruptive, disorderly behavior while in an intoxicated condition in Deerfield Beach, Florida, on April 3, 1986. This conduct evidences Respondent's failure to maintain good moral character pursuant to Rule 11B- 27.011(4)(c), Florida Administrative Code.

    
    

24. The parties stipulated that the provisions of Section 943.1395(5),(6), Florida Statutes, are to be applied in the instant proceeding if Petitioner established by clear and convincing evidence that Respondent failed to maintain good moral character as alleged in the Administrative Complaint.

    
    

25. Section 943.1395(5),(6), Florida Statutes, provide, in pertinent part, as follows:

    
    

    1. The commission shall revoke the certification of an officer who fails to comply with s. 943.13(1)-(10)

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

       1. Suspension of certification for a perio not to exceed 2 years.

       2. Placement on a probationary status for a period not to exceed 2 years, subject to

          terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

    
    

26. Rule 11B-27.005(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. When the Commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       1. For the perpetration by the officer of an act which would constitute any felony offense, as described in Rule 11B- 27.0011(4)(a), but where there was not a violation of Subsection 943.13(4), F.S., the action of the Commission shall be to impose a penalty ranging from probation to revocation.

       2. For the perpetration by the officer of an act which would constitute any of the misdemeanor offenses as described in Rule 11B-27.0011(4)(b), but where there was not a violation of Subsection 943.13(4), F.S., the

          action of the Commission shall be to impose a penalty ranging from probation to revocation.

       3. For the perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, as described in Rule 11B-27.1011(4)(c), if such act or conduct does not constitute a crime, as described in paragraphs (3)(a) and (b) above, the action of the commission shall be to impose a penalty ranging from the issuance of a reprimand to revocation.

          
          

27. Rule 11B-27.005(4), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The Commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of mitigating circumstances by evidence presented to the Commission prior to the imposition of a final penalty. The Commission may base a deviation from the disciplinary guidelines upon a finding of one or more of the following mitigating circumstances:

    * * *

    (i) The length of time since the violation;

    (j) The length of time the officer has been certified;

    * * *

    (m) Any effort at rehabilitation by the officer;

    
    

28. In deciding the disciplinary options available in this case, it is appropriate to consider that alcoholism is a disease and that Respondent had, as of the hearing, abstained from the use of alcohol for two and one-half years and was actively participating in the Alcoholics Anonymous program. It is also appropriate to consider that mitigating factors exist in this case. The last violation occurred in April 1986, over three years ago. Respondent has been certified as a law enforcement officer since November 1972. Finally, and most importantly, Respondent has made sincere efforts to rehabilitate himself by seeking assistance in dealing with his alcoholism.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement,

Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol.

DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 18th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714

The proposed findings of fact submitted on behalf of Petitioner are addressed as follows:

1. Addressed in paragraph 1.

2-3. Addressed in paragraph 2(a).

1. Addressed in paragraph 2(c).

2. Addressed in paragraph 2(d).

3. Addressed in paragraph 2(e).

4. Addressed in paragraph 2(g).

5. Addressed in paragraph 2(h).

9-10. Addressed in paragraph 2(i).

1. Addressed in paragraph 3.

2. Addressed in paragraph 12.

13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b).

1. Rejected as being unnecessary to the results reached.

2. Addressed in paragraph 6(c).

3. Addressed in paragraph 6(e).

20-22. Addressed in paragraph 6(f).

1. Addressed in paragraph 6(g).

2. Addressed in paragraph 6(h).

The proposed findings of fact submitted on behalf of Respondent are addressed as follows:

1. Addressed in paragraph 1.

2-5. Addressed in paragraphs 2(a), (b), and (c).

1. Addressed in paragraphs 2(f) and (g).

2. Addressed in paragraphs 2(h) and (i).

3. Rejected as being recitation of testimony and as being subordinate to the findings reached.

4. Addressed in paragraph 4.

10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached.

13. Addressed in paragraph 3.

14-16. Addressed in paragraph 6(a).

1. Addressed in paragraph 6(b).

2. Addressed in paragraph 6(e).

3. Rejected as being recitation of testimony and as being subordinate to the findings reached.

4. Addressed in paragraphs 6(g) and (h).

21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached.

25. Addressed in paragraph 5.

26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10.

28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10.

32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10.

37-38. Rejected as being unnecessary to the results reached.

40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10.

42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8.

46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8.

50. Addressed in paragraphs 1 and paragraph 11.

51-54. Rejected as being unnecessary to the results reached

1. Addressed in paragraph 7.

2. Addressed in paragraph 5.

3. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay.

4. Addressed in paragraph 9.

5. Rejected as being unnecessary to the results reached.

COPIES FURNISHED:

Joseph S. White, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

James C. Casey, Esquire 10680 N.W. 25th Street Suite 100

Miami, Florida 33172

Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards

Training Commission Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

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

Docket for Case No: 89-000714

Orders for Case No: 89-000714