STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6261

)

MELVIN M. BARTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the

above

APPEARANCES

For Petitioner: Joseph S. White, Esq.

Florida Department of Law Enforcement

P.O. Box 1498 Tallahassee, FL 32302

For Respondent: Joseph R. Fritz, Esq.

4204 North Nebraska Avenue Tampa, FL 33603

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's conduct, which resulted in his conviction of the misdemeanor offenses of battery and improper exhibition of a deadly weapon, also constitutes violation of Section 943.13(7), Florida Statutes; namely, failure to maintain the good moral character requisite to continued certification as a law enforcement officer.

PRELIMINARY STATEMENT

On September 28, 1989, Petitioner issued an administrative complaint which charges Respondent with failure to maintain good moral character as a result of his commission of the offenses of battery and assault with a deadly weapon.

The administrative complaint seeks to impose disciplinary sanctions against Respondent's law enforcement certifications as a result of his failure to maintain good moral character; a failure which the complaint alleges is exemplified by Respondent's commission of these offenses.

Respondent disputed the allegations of fact contained in the administrative complaint and requested a formal hearing regarding those allegations. On

November 16, 1989, the matter was transferred to the Division Of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Originally scheduled for final hearing on March 20, 1990, the matter was continued until May 2, 1990, at the request of the parties for continuance and change of venue of the proceeding from Tampa to Arcadia, Florida.

At the final hearing, Petitioner presented the testimony of four witnesses and 14 evidentiary exhibits. Respondent had no witnesses nor any evidentiary exhibits.

A transcript of the final hearing was filed with the Division Of Administrative Hearings on May 16, 1990. Proposed findings of fact were not timely submitted by either of the partiesand no such proposed findings had been received from either party by the undersigned at the time of preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Melvin M. Barton, holder of Auxiliary Law Enforcement Certificate Number 32-85-001-01 and Law Enforcement Certificate Number 33-87- 002-01, at all times pertinent to these proceedings.

   
   

2. On January 1, 1989, Respondent, estranged from his wife and three month old daughter, went to the house where the wife and daughter resided. He was upset with his wife because she had left the infant with an unfamiliar baby sitter the night before in order to attend a New Year's eve celebration with another individual.

   
   

3. Respondent and his wife argued. He struck her numerous times with his hands and with the butt of a rifle. He pointed the rifle at his wife and told her that he could shoot her. Respondent's wife was "fearful" at this moment. Then, after he told her to sit in a stuffed chair in the living room, he proceeded to fire a bullet into the chair. He later discharged the gun into a door of the home.

   
   

4. Later in the altercation, Respondent held a pistol against his wife's throat and directed her to telephone the individuals she had been with the evening before. She tried to reach these people by telephone, but was unsuccessful.

   
   

5. During a major portion of the time, several minutes,that Respondent's wife attempted to telephone the persons with whom she had celebrated the night before, Respondent kept the gun barrel pressed against her throat. Respondent's wife was frightened by this action of Respondent.

   
   

6. Later, Respondent made his wife undress and engage in sexual intercourse with him. He then went to sleep. She got up, took the infant, and left the house.

   
   

7. Respondent's wife subsequently was treated on an outpatient basis at a local hospital where the treating physician observed she was bleeding from both nostrils and had a fracture of her nasal bone.

8. The physician also observed swelling on the victim's left and right upper arms, thighs and right shoulder. The swollen areas were red and tender. Red circular marks were also observed on her neck.

   
   

9. The marks observed on the neck of Respondent's wife were consistent with marks which could be expected to have resulted from the pressing of a gun barrel against that area of her neck for several minutes. She acknowledged to the physician that her estranged husband had beat her up.

   
   

10. Respondent and his wife were not living together at the time of the altercation which is the subject of this proceeding and have not lived together since. However, they are not formally divorced and continue to see each other on an occasional basis.

    
    

11. Petitioner's evidentiary exhibits 2-14 consist of photographs. The photographs were admitted in evidence at thefinal hearing. They were taken by a deputy sheriff for DeSoto County, shortly after the incident, in the course of his investigation of the matter.

    
    

12. Photographs in Petitioner's exhibits 2-10 depict the marks on the body of Respondent's wife which resulted from the incident and corroborate the testimony of Respondent's wife regarding her injuries, as well as the testimony of the emergency room physician who treated the victim.

    
    

13. Petitioner's photographic exhibits 11-14 document the trajectory of the bullet, and resultant damage, through the chair in which Respondent's wife was sitting when Respondent discharged a firearm into it.

    
    

14. Later in the evening of January 1, 1989, after Respondent's wife initiated the investigation of the incident by the DeSoto County Sheriff's department, Respondent appeared at the County Sheriff's office where he apologized to his wife and told her that he was sorry. He further told her that she could do the same thing to him if it would make everything all right.

    
    

15. On January 30, 1989, Respondent was charged by information filed in DeSoto County Court case no. 89-37-34mm with a misdemeanor count of battery in violation of Section 784.03, Florida Statutes, and a misdemeanor count of improper exhibition of a firearm in violation of Section 790.10 Florida Statutes. Both offenses are first degree misdemeanors.

    
    

16. On March 20, 1989, Respondent entered a plea of no contest to both of the charged offenses. He was subsequentlyadjudicated guilty of both violations and sentenced to one year's probation and payment of $75.00 in court costs.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Section 943.13(7), Florida Statutes, requires that any full-time or part-time certified law enforcement officer maintain good moral character.

    
    

19. Petitioner's rule policy defines failure to maintain good moral character to include commission by a law enforcement officer of any act constituting a felony offense, regardless of whether the offense is prosecuted. Rule 11B-27.0011(4)(a), Florida Administrative Code.

20. Perpetration of an act which is specifically a violation of Section

    784.03 or Section 790.10, Florida Statutes, also constitutes failure to maintain the requisite good moral character. Rule 11B-27.0011(4)(b), Florida Administrative Code. These are the offenses to which Respondent entered a plea of no contest and of which he was subsequently convicted.

    
    

21. The administrative complaint in this case specifically charges Respondent with failure to maintain good moral character through violation of Rule 11B-27.0011(4)(a), Florida Administrative Code, by commission of an act constituting a felony offense.

    
    

22. While charged and convicted of misdemeanor offenses for his conduct, the foregoing findings of fact also illustrate that Respondent's actions on the evening of January 1, 1989, constituted multiple felony offenses.

    
    

23. Included among the felonies that appear to have been perpetrated by Respondent's conduct are aggravated assault in violation of Section 784.021, Florida Statutes, and shooting within a dwelling in violation of Section 790.19, Florida Statutes.

    
    

24. The elements of aggravated assault necessarily include those of the crime of simple misdemeanor assault, which are set forth in Section 784.011(1), Florida Statutes, as follows:

    
    

    784.011 Assault.--

    An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do

    so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

    
    

25. Aggravated Assault is defined by Section 784.021, Florida Statutes, as follows:

    
    

    784.021 Aggravated assault.--

    1. An "aggravated assault" is an assault:

       1. With a deadly weapon without intent to kill; or

       2. With intent to commit a felony.

    2. Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s.775.083, or s.775.084.

    
    

26. Respondent's action of holding a pistol to his wife's throat and requiring her to telephone her friends is one incident of aggravated assault. This violation occurred again when Respondent pointed a rifle at his wife and told her that he could kill her. Such actions certainly constituted unlawful threats byword or act of violence by Respondent and graphically illustrated an apparent ability on his part to carry out those threats. As established by the testimony at the final hearing, Respondent's wife was frightened. She certainly had every right to a "well-founded fear" under the circumstances of the situation.

    
    

27. By firing a rifle shot into his wife's chair (while she was seated in it) on the evening of January 1, 1989, inside of her home, Respondent

    technically committed a violation of Section 790.19, Florida Statutes, which reads as follows:

    
    

    790.19 Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles.--- Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile

    or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus

    or any train , locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of

    this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in s.775.082, s. 775.083, or s. 775.084.

    
    

28. Petitioner bears the burden of proving by "clear and convincing evidence" the allegations of the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has met this burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking Respondent's Auxiliary Law Enforcement Certificate Number 32

002-01.

DONE AND ENTERED this 5th day of June, 1990, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399

(904) 488

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1990.

Copies furnished:

Joseph S. White, Esq. Florida Department of Law

Enforcement

P.O. Box 1498 Tallahassee, FL 32302

Joseph R. Fritz, Esq.

4204 North Nebraska Avenue Tampa, FL 33603

Jeffrey Long, Director Criminal Justice Standards

Training Commission

P.O. Box 1489

Docket for Case No: 89-006261

Orders for Case No: 89-006261