STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6408

)

CHARLES A. MONICO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on May 24, 1990, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Elsa L. Whitehurst, Esquire

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

For Respondent: Leon B. Cheek, Esquire

Cheek and Trotter

101 Sunnytown Road Suite 306

Casselberry, Florida 32707 STATEMENT OF THE ISSUES

Whether the actions of the Respondent on September 1, 1988 violated the provisions of Sections 943.1395(5),(6), Florida Statutes and Rule 11B-27.0011(4) (b), Florida Administrative Code by perpetration of an act which would constitute failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes.

PRELIMINARY STATEMENT

Respondent is a certified law enforcement officer charged by Petitioner in an Administrative Complaint, dated September 28, 1989 with violation of the provisions of Section 493.1395, Florida Statutes and the applicable rules.

Respondent contested the allegations and elected to have a formal hearing under the provisions of Section 120.57(1).

Following discovery by-the parties, the formal hearing was held during which Petitioner presented the testimony of three witnesses and offered five

exhibits in evidence. Respondent testified under oath and offered fifteen exhibits in evidence.

Both parties agreed to file their proposed recommended orders within 20 days of the filing of the transcript. The transcript of the proceedings was filed with the Clerk of the Division on June 20, 1990. Petitioner filed its proposals on July 16, 1990. Respondent filed his proposed findings of fact and conclusions of law on July 16, 1990. The proposed findings have been given careful consideration and have been incorporated where appropriate. Specific rulings are addressed in the Appendix attached to this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984.

   
   

2. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division.

   
   

3. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting.

   
   

4. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act.

   
   

5. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school.

   
   

6. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle.

   
   

7. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle.

   
   

8. At the time of the incident, Respondent was having marital problems which caused him to be despondent.

   
   

9. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with

   HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout th state, pursuant to Section

    943.085 943.255, Florida Statute (1989), and to discipline those licensed thereunder who violate the law.

    
    

12. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Chapter 943.1395, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

13. Subsections 943.1395(5) and (6), Florida Statutes (1989), establish grounds for which disciplinary action may be taken against a certified law enforcement officer who fails to maintain good moral character.

    
    

14. "Failure to maintain good moral character" is defined in Rule 11B- 27.0011(4), Florida Administrative Code in pertinent part as:

    
    

    1. 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 796.07, F.S., or

    2. 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...

       
       

15. When a violation has been proven, one or more of the following disciplinary actions may be taken, pursuant to Subsections 943.1395(5) and (6), Florida Statutes (1989):

    
    

    1. Revoke the certification of an officer.

    2. Suspension of certification for a period not to exceed two years.

    3. Placement on a probationary status for a period not to exceed two years, subject to terns and conditions imposed by the Commission.

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

    5. Issuance of a reprimand.

    7. Section 796.07(1)(e), Florida Statutes, defines the act of prostitution as the "giving or receiving of the body for sexual activity for hire." There is no

    evidence that Respondent's activities on September 1, 1988 included the engaging in sexual activities

    for hire. The evidence is clear and convincing that, even though Respondent was not arrested, Respondent was engaged in fellatio, a lewd act, in the front seat of a state vehicle while he was on duty in violation of Section 796.07(3) (a) and (e), Florida Statutes.

    Accord: Cheesebrough v. State, 255 So.2d 413 (Fla. 1971). By the perpetration of such act, espondent has violated Rule 11B-27.0011(4)(b), Florida Administrative Code, and is subject to discipline.

    
    

16. Assuming arguendo, that Respondent's conduct was not unlawful under Section 796.07(3), Florida Statutes, such conduct perpetrated while on duty and in a state vehicle clearly causes substantial doubts concerning this officer's respect for the laws of the state and nation, and he is guilty of failure to maintain good moral character. Rule 11B-27.0011(4)(c), Florida Administrative Code. This provision is in keeping with the First District Court of Appeal's observation that:

    
    

    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. An isolated unlawful act . . . does not necessarily establish bad moral character. But . . . repeated acts in violation of law whereever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that [is proscribed]. Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 at 1105 (Fla. 1st DCA 1977).

    
    

17. Respondent's marital problems at the time of the incident, and his candor and demeanor, indicate that this incident was an isolated unlawful act; his excellent record in law enforcement and his reputation in the community mitigate against revoking his certification.

RECOMMENDATION

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

RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection

943.13(7), Florida Statutes (1989). It is further

RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose.

DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 17th day of July, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact:

Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12,

13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21.

Rejected as against the greater weight of the evidence or irrelevant: Paragraphs

7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22.

Respondent's Proposed Findings of Fact:

Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9.

COPIES FURNISHED:

Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Leon B. Cheek, Esquire

101 Sunnytown Road Suite 306 Casselberry, FL 32707

Jeffrey Long, Director Criminal Justice Standards Training Commission

Post Office Box 1489 Tallahassee, FL 32302

James T. Moore Commissioner

Department of Law Enforcement Tallahassee, FL 32302

Docket for Case No: 89-006408

Orders for Case No: 89-006408