STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4590

)

DAVID A. THOMASUN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 28, 1991, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: John P. Booth, Esquire

Florida Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: David A. Thomasun, pro se

1323 Southeast 17th Street, #449 Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he used his law enforcement badge and credentials to misrepresent himself as acting in a formal law enforcement investigative capacity, when he was actually engaged in a private matter. The Respondent denies any misconduct.

PRELIMINARY STATEMENT

At the formal hearing, the Petitioner presented the testimony of four witnesses: Phillip C. Jones, Joyce Dawley, Earl E. Fluellen, and Harry Solowsky. The Petitioner also offered four exhibits that were received in evidence. The Respondent presented the testimony of one witness, Willie J. Duncan, and also testified on his own behalf. The Respondent also offered five exhibits that were received in evidence.

At the conclusion of the hearing the parties requested, and were granted, twenty-one days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed on April 29, 1991. On May 13, 1991, the Respondent filed a one-page document titled "Proposed Recommended Order," in which he stated in summary form his proposed disposition of the case. On May 20, 1991, the Petitioner filed a 29-page document titled "Petitioner's Proposed Findings of Fact and Conclusions of Law." On June 20, 1991, the Respondent filed a Western Union Mailgram advising that he was express mailing ". . . substantial Respondent's information in the form of a motion . . . ." On June 21, 1991, the Respondent filed a 21-page handwritten document titled "Respondent's Motion To Submit Additional Argument And Defense." The document is, in essence, a response to the Petitioner's proposed findings and conclusions, and consists primarily of a mixture of factual assertions and arguments in support of the Respondent's position.

On July 25, 1991, the Respondent filed an 8-page document titled "Motion To Submit Additional Information Motion to Dismiss (Request) by F.D.L.E." The document was accompanied by a copy of a letter addressed to the Respondent and by a newspaper article. The 8-page document consists primarily of further argument in support of the Respondent's position.

On August 1, 1991, the Petitioner filed a Motion To Strike Respondent's Additional Submissions. The motion argues that the Respondent's submissions filed on June 21, 1991, and on July 25, 1991, should be stricken because they are unauthorized and untimely, as well as unfair, because the Respondent's submissions were filed after he had an opportunity to study the Petitioner's proposal for a month or more. On August 7, 1991, the Respondent filed an objection to the motion to strike.

The Petitioner's Motion To Strike Respondent's Additional Submissions is granted to the following extent. All new evidence and all factual assertions made for the first time in the Respondent's post-hearing submissions are stricken and have been disregarded in the preparation of this Recommended Order. 1/ Even though submitted late, all of the Respondent's legal arguments have been considered.

FINDINGS OF FACT

Facts stipulated to by the parties

1. Respondent David A. Thomasun (hereafter "Thomasun") holds auxiliary law enforcement certificate number 01-6739, issued by the Criminal Justice Standards and Training Commission on October 16, 1979, and holds law enforcement certificate number 03-84-002-03, issued by said Commission on November 5, 1984.

   
   

2. On June 27, 1988, at approximately 6:30 p.m., Thomasun entered the Broward General Medical Center for the purpose of photographing an individual named Phillip Ambrose, who, unknown to Thomasun at the time, had shortly before been arrested by the Pompano Beach Police Department, and subsequently had been taken to the Medical Center by the Pompano Beach Police for further examination.

   
   

3. Thomasun was then an auxiliary special agent with the Florida Department of Law Enforcement, but was not on duty at the time he entered the Medical Center. He had not been authorized or requested by the Florida Department of Law Enforcement (FDLE), the Pompano Beach Police Department, or any law enforcement agency to photograph Ambrose for any purpose.

4. Thomasun had been hired by a personal injury attorney to take photographs of Ambrose, who was the attorney's client, at the Medical Center. Thomasun had no reason for being in the Medical Center other than to take said photographs for said attorney.

   
   

5. Thomasun approached Pompano Beach Police Officer Scott Winters, who was guarding Ambrose, and after Officer Winters searched his camera bag and his pockets, and viewed other personal identification such as his driver's license, Thomasun displayed to Officer Winters his FDLE auxiliary special agent credentials, consisting of a black leather case containing two identification cards, one with a photograph, and a badge attached and visible on the exterior of the case. Said credentials identified Thomasun as an auxiliary special agent with FDLE.

   
   

6. Shortly afterward, Officer Winters left the immediate area to make some telephone calls, without permitting Thomasun to take any photographs of Ambrose. Thomasun then departed without taking any photographs.

   
   

7. On the following day, June 28, 1988, Thomasun related his account of the incident of the preceding day to his immediate supervisor, Special Agent Joyce Dawley, and to Assistant Chief of Regional Operations Harry Solowsky and Special Agent Supervisor George Vilardi.

   
   

8. Thomasun was terminated from his position as auxiliary special agent with FDLE on June 28, 1988.

   
   

   Facts established by evidence at hearing

   
   

9. Thomasun's termination from his position as an auxiliary special agent with FDLE was based on the information gathered by FDLE du ring the course of its investigation of the incident on June 27, 1988, at Broward General Medical Center. 2/

   
   

10. Thomasun's stated purpose for going to the hospital room on June 27, 1988, constituted, by his own admission, a direct conflict of interest with his duties as an auxiliary law enforcement officer. Shortly after realizing that the situation in the hospital room represented a conflict of interest, Thomasun left the hospital room.

    
    

11. At all times material to this proceeding, auxiliary special agents of the FDLE were subject to the provisions of Procedural Order 87-2. Section I.C. of that procedural order read as follows:

    
    

    FDLE auxiliary special agents are authorized

    to function as regular law enforcement officers only during specific tours of duty and investigative situations. When off duty, the auxiliary special agent may only act in the capacity of a private citizen. Auxiliary special agents can only function as regular

    law enforcement officers when under the direct control and supervision of a full-time special agent of the Florida Department of Law Enforcement.

12. Section VI.A.3. of Procedural Order 87-2 read as follows:

    
    

    Although the display of credentials will only be permitted while in an on-duty status in the company of a full-time sworn agent, the auxiliary special agent will be permitted to keep his/her credentials while in off-duty status provided they do not display or attempt to exercise official powers unless in an

    on-duty status.

    
    

13. Thomasun was thoroughly familiar with the above-quoted provisions of Procedural Order 87-2.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

15. Section 943.13, Florida Statutes, establishes the minimum qualifications for certification as a law enforcement officer, which qualifications include the requirement, at subsection (7), that a law enforcement officer "[h]ave a good moral character. . . ." And Section 943.1395(5), Florida Statutes, provides: "The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10). . . ." Section 943.1395(6), Florida Statutes, authorizes certain lesser penalties for application in appropriate cases.

    
    

16. Rule 11B-27.0011(4), Florida Administrative Code, reads as follows, in pertinent part:

    
    

    (4) 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 a good moral character, as required by Section 943.13(7), is defined as:

    * * *

    (c) 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, . . .

    
    

17. The above-quoted definition appears to be a codification of what the Florida courts have said on the subject of what constitutes a lack of good moral character. See, for example, Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454 (Fla. 1978); Zemour, Inc. v. State Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977).

18. In a proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as

    to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or

    conviction, without hesitancy, as to the truth of all the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

19. In proceedings of this nature, hearsay evidence is admissible, but its utility as a predicate for fact-finding is limited by the following language of Section 120.58(1)(a), Florida Statues:

    
    

    Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to

    support a finding unless it would be admissible over objection in civil actions.

    
    

20. The essence of the charge in the Administrative Complaint in this case is that Thomasun's conduct during the incident at Broward General Medical Center on June 27, 1988, demonstrates a lack of good moral character. The facts found above in the Findings of Fact portion of this Recommended Order are insufficient to establish a lack of good moral character within the meaning of either the rule definition or the Florida court decisions on the subject of lack of good moral character. At most, those facts show a single incident of a lapse of good judgment. The facts found above do not cause any doubts concerning Thomasun's honesty, fairness, respect for the rights of others, or respect for the law. Therefore, the evidence in this case is insufficient to sustain the charge in the Administrative Complaint.

21. The Petitioner offered evidence of additional facts concerning statements allegedly made by Thomasun during the incident on June 27, 1988, but all of the evidence in that regard has hearsay evidence which would not be admissible over objection in a civil action. 3/ Accordingly, I have not found any facts based on that evidence. 4/

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Administrative Complaint.

DONE and ENTERED this 2nd day of March 1992, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division

of Administrative Hearings this 2nd day of March 1992.

ENDNOTES

1/ The findings of fact which follow in the Recommended Order are based solely on the stipulations of the parties and on the testimony and exhibits presented at the formal hearing.

2/ The propriety of Thomasun's termination by FDLE is not at issue in this case. The only issue here is whether some disciplinary action should be taken with regard to Thomasun's certification as a law enforcement officer.

3/ The hearsay evidence consists of a report written by Police Officer Scott Winters regarding the incident on June 27, 1988, and testimony by Officers Phillip C. Jones and Earl E. Fluellen as to statements made by Officer Winters in telephone conversations while the incident was in progress. The hearsay evidence is to the effect that during the incident on June 27, 1988, Thomasun made oral statements to Officer Winters misrepresenting the capacity in which Thomasun was acting. Thomasun has at all times denied making any such oral statements. Officer Winters could not be called as a witness because he was killed in the line of duty prior to the date of the hearing.

4/ It is gratuitously noted that even if it were to be concluded that the hearsay evidence was admissible over objection in a civil action and was, therefore, a proper predicate for fact-finding, it is far from certain that consideration of such evidence would affect the disposition of this case. While such evidence might be sufficient to meet a mere preponderance burden, it does not appear to be evidence of the quality necessary to meet the clear and convincing standard as described in Slomowitz v. Walker, supra.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on all proposed findings of fact timely submitted by the parties.

Findings proposed by Petitioner:

Paragraphs 1 through 8: Accepted. (These are the stipulated facts.) Paragraph 9: Rejected because the findings proposed in this paragraph are supported only by hearsay evidence that would not be admissible over objection in civil actions.

Paragraph 10 The findings proposed in this paragraph are already covered in the stipulated findings.

Paragraph 11: Accepted in substance. Paragraphs 12 and 13: Accepted.

Paragraph 14: Accepted in substance; the termination was because FDLE believed Thomasun had misrepresented himself.

Findings proposed by Respondent:

The Respondent did not submit any timely proposed findings of fact.

COPIES FURNISHED:

John P. Booth, Esquire Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, FL 32302

Mr. David A. Thomasun

1323 Southeast 17th Street, #449 Fort Lauderdale, FL 33316

Jeffrey Long, Director James T. Moore, Commissioner Criminal Justice Standards Department of Law Enforcement

and Training Commission Post Office Box 1489 Post Office Box 1489 Tallahassee, FL 32301 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004590

Orders for Case No: 90-004590