STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, CRIMINAL ) JUSTICE STANDARDS AND TRAINING ) COMMISSION, )

)

Petitioner, )

)

vs. )

) CASE NO. 89-3816

ALVIN D. BRADLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on September 26, 1989, a formal hearing was held in this case pursuant to Section 120.57(1), Florida Statutes. The location of the hearing was the Courthouse Annex Conference Room in the Columbia County, Florida Courthouse, at 35 Hernando Street, Lake City, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Stephen A. Smith, Esquire

Post Office Drawer 1792

Lake City, Florida 32056-1792 STATEMENT OF THE ISSUES

The issues in this case concern an administrative complaint brought by the Petitioner against Respondent, as amended, charging Respondent with a lack of good moral character based upon: (a) The reckless display of a firearm on December 28, 1986; (b) Driving under the influence on September 13, 1987 and

1. Committing a battery against Jacklyn Yvonne Jones-Holland on September 13, 1987. As a consequence, Respondent is said to have failed to maintain the qualifications for licensure as announced in Section 943.13(7), Florida Statutes, which require good moral character and to have violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code.

   PRELIMINARY STATEMENT

   
   

   Respondent had been charged, on June 9, 1989 by administrative complaint, with the battery of Gwendlyn Jones- Holland, whose actual name is Jacklyn Yvonne Jones-Holland. He sought a formal hearing to contest those allegations by an election of his rights. The file materials with the Division of Administrative Hearings shows that choice was made on June 14, 1989.

   
   

   Petitioner on September 11, 1989, moved to amend the administrative complaint. The new administrative complaint was dated September 21, 1989 and included allegations of the Holland incident as well as the improper display of a firearm and DUI allegations. Respondent did not oppose the idea of an amendment to the administrative complaint and that amendment was accepted at the commencement of the hearing on September 26, 1989.

   
   

   Five exhibits were admitted at hearing. Those exhibits were offered by Petitioner. Petitioner presented the testimony of Ms. Holland, who at the time of the alleged incident worked for the Columbia County Sheriff's Office. Robert Bellamy, a trooper with the Florida Highway Patrol who has expertise in the operation of breathalyzer equipment testified for Petitioner, as did Charles R. Tate, a deputy sheriff with the Columbia County Sheriff's Office. Billy Carter, a criminal investigator with the Lake City Police Department, testified for Petitioner. Finally, Dwight Aldridge Floyd, an employee of the Petitioner testified. Respondent testified in his own behalf.

   
   

   Petitioner moved to extend the time for filing proposed recommended orders and Respondent's counsel agreed. An order was entered on November 7, 1989, extending the time for the submission of proposed recommended orders until November 13, 1989. By this request and through the extension, the parties waived their right to the entry of a recommended order within 30 days of the receipt of the transcript which was filed with the Division of Administrative Hearings on October 24, 1989. See Rule 22I-6.031, Florida Administrative Code. Respondent filed a proposed recommended order on November 13, 1989. Petitioner noticed its waiver of the filing of a proposed recommended order, in which it is stated that based upon unforeseen circumstances the Petitioner was unable to comply with the deadline for filing of November 13, 1989. The proposed fact finding set forth in the Respondent's proposed recommended order is spoken to in an appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer.

      
      

   2. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend.

   3. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car.

      
      

   4. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer.

      
      

   5. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket.

      
      

   6. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident.

      
      

   7. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year.

      
      

   8. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive.

      
      

   9. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west

      bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour.

      Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue.

      
      

   10. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment.

       
       

   11. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk."

       
       

   12. There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent.

       
       

   13. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim.

       
       

   14. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that

       offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers

       5 and 4 respectively.

       
       

   15. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

       
       

   17. Section 943.13(7), Florida Statutes, speaks to one of the minimum qualifications for a candidate to be a law enforcement officer to gain certification. In particular it points out that a law enforcement officer must have good moral character as determined by a background investigation through procedures that the Petitioner has established.

       
       

   18. Section 943.1395(5), Florida Statutes, empowers the Petitioner to revoke the certificate of the law enforcement officer who is not in compliance with requirements for licensure, to include the requirement of good moral character.

       
       

   19. Section 943.1395(6), Florida Statutes allows the imposition of a lesser penalty.

       
       

   20. As a result, it is not mandatory that the Respondent have his license revoked and that approach to discipline which allows lesser penalties to be exacted has application to this dispute.

       
       

   21. Rule 11B-27.0011, Florida Administrative Code, in its present form post dates the offenses at issue here and includes within it a substantive definition of acts which demonstrate a lack of good moral character. Among those items set forth in that provision are certain misdemeanors to include Section 790.10, Florida Statutes, related to improper exhibition of a firearm and Section 784.03, Florida Statutes, pertaining to the offense of battery. Given that the rule in its present form was enacted subsequent to the offenses questioned by this administrative complaint, the rule has no application to this dispute.

       
       

   22. On the other hand, without regard for the criteria that are established to identify substantive violations, as announced in Rule 11B- 27.0011, Florida Administrative Code, the fact that the Respondent improperly exhibited the firearm leading to the death of his friend is found to be a departure from the requirements of good moral character and the inappropriate touching of Ms. Holland which constituted a battery on her person is found to be a departure from the requirement to maintain good moral character. Driving under the influence, which Respondent has done in this case, is not found to be a departure from good moral character. In drawing this conclusion support is found in the fact that driving under the influence is not one of the offenses in Rule 11B-27.0011, Florida Administrative Code, that equates to a lack of good

moral character. For these offenses that were proven the Petitioner is empowered to impose the discipline announced in Sections 943.1395(5) or (6), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That a Final Order be entered suspending the certificate of the Respondent for a period of six months.

DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816

The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found.

Paragraph 6 is not accepted to the extent that it argues that the incident

involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense.

The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time.

Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the

Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order.

Paragraph 8 is contrary to facts found.

COPIES FURNISHED:

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Stephen A. Smith, Esquire Post Office Drawer 1792

Lake City, Florida 32056-1792

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

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

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Petitioner,

-vs- DOAH CASE NO.: 89-3816

CASE NO.: C-1460

ALVIN D. BRADLEY,

Certificate Number: 14-84-502-04,

Respondent.

/

FINAL ORDER

The above styled matter came on for final action before 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 hearing on April 20, 1990, in Ft. Lauderdale, Florida, upon consideration of the Recommended Order of the Hearing Officer entered herein. A transcript of the proceeding is available, if necessary. Respondent was neither present nor represented by counsel at the Commission meeting.

Upon consideration of the Hearing Officer's Recommended Order, including the exceptions filed thereto and the arguments of the parties and after a review of the complete record in this matter, the Commission makes the following findings:

FINDINGS OF FACT

The Commission, having review the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer.

CONCLUSIONS OF LAW

Having reviewed the Recommended conclusions of law, the Commission adopts the Hearing Officer's conclusions of law which are attached hereto and fully incorporated herein by reference.

The Hearing Officer's Recommended penalty in this cause is rejected for those reasons cited in the Petitioner's Exceptions to Recommended Order which is hereby approved and adopted and fully incorporated herein by reference.

Accordingly, Respondent's Exceptions to Recommended Order are rejected as unsupported by the Commission's Findings and Conclusions and for those reasons stated on the record at the above-referenced Commission meeting.

There is competent and substantial evidence to support the Commission's findings and conclusions.

IT IS THEREFORE ORDERED AND ADJUDGED:

Respondent, Alvin D. Bradley's certification as a Correctional Officer, Certificate Number: 14-84-502-04, is hereby REVOKED.

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 of this order is filed.

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

DONE AND ORDERED this 9th day of July, 1990.

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION

MICHAEL A. BERG, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to Alvin D. Bradley, Route 6, Box 523-B, Lake City, Florida 32055, by

U.S. Mail on or before 5:00 P.M., this 9th day of July, 1990.

cc: All Counsel of Record

Docket for Case No: 89-003816

Orders for Case No: 89-003816